Bourke v MacNeil

MASON P: I agree with Rolfe AJA.

HEYDON AJA: I agree with Rolfe AJA ROLFE AJA: Introduction

On 10 December 1984, the defendant, Dr Peter MacNeil, a highly qualified Specialist General Surgeon, for whom Mr A.J. Sullivan of Queen’s Counsel and Mr I.F. Butcher of Counsel appeared in this appeal, performed a Nissen Fundoplication operation on the plaintiff, Mr Stephen Gower Bourke, for whom Mr B.M.J. Toomey of Queen’s Counsel and Mr R.L. Ingram of Counsel appeared, to relieve a condition of oesophageal reflux. Mr Bourke alleged that the operation was carried out negligently in that Dr MacNeil performed a vagotomy, which was neither required nor authorised.

Mr Toomey opened the case at trial as one in which Dr MacNeil “inadvertently” performed a vagotomy in the vicinity of the vagus nerve during the fundoplication, and, as Mr Bourke continued to suffer gastric symptoms after the operation, it could be inferred that there had been a severing or interference with that nerve. The trial was conducted on the basis of this allegation for some time until it became clear that Mr Bourke could not establish it, whereupon the allegation was abandoned. Before that much evidence was given about the consequences of an inadvertent vagotomy. Some of it indicated that the symptoms from which Mr Bourke suffered post-operatively were referable to a truncal vagotomy and not to fundoplication syndrome, thus further complicating an already complex mass of evidence as to Mr Bourke’s condition and, more importantly, the cause of it.

Mr Toomey conceded that he could not pursue this issue of negligence and the learned trial Judge, Murray AJ, said that the fundoplication operation was carried out in a completely satisfactory way:- “I wish to make it clear that the operation was carried out expertly by Dr MacNeil, and there was no complaint about the operative procedure itself. I accept that the plaintiff falls into that small category of patients, who suffer the continuing effects of the ‘post fundoplication syndrome’.”

The only allegation of negligence ultimately pursued at trial, and on which Mr Bourke succeeded, was that Dr MacNeil did not adequately warn him of the material risks associated with the operation and:- “.. in particular, the material risk that he would not be cured or relieved of his then symptoms, or, put differently, he would suffer from a condition known as ‘post fundoplication syndrome’.” There was no allegation that the fundoplication was not a proper operation to cure Mr Bourke’s symptoms, nor that Dr MacNeil should have carried out any further or other investigations before operating to ensure that it would not affect any other condition from which Mr Bourke was or may have been suffering. This was significant because there was an abundance of evidence that pre-operatively and post-operatively Mr Bourke was suffering from a condition of gastric motility, which could have caused the post-operative symptoms of which he complained independently of or, perhaps, in combination with the fundoplication operation.

The passage I have quoted from his Honour’s reasons in paragraph 4 points up one of the essential matters his Honour had to decide, viz whether Mr Bourke suffered from post-fundoplication syndrome. Unless he did, even accepting that Dr MacNeil should have given the warning, the negligence in failing to do so was not causative of the subsequent medical condition from which Mr Bourke suffered and, in those circumstances, there should have been judgment for Dr MacNeil. For reasons I shall explain, I do not consider that Mr Bourke discharged the onus, which clearly lay upon him, of proving that he suffered from post-fundoplication syndrome. Accordingly, in the view I take, the appeal should be allowed and, in lieu of the orders made by his Honour, there should be a verdict for Dr MacNeil with costs.

His Honour assessed damages in the sum of $358,608, a figure at which he arrived by an initial calculation of $896,650 reduced by sixty per cent because:- “I think this ‘chance’ element impacts on every aspect of the damages in this case. Accordingly, I shall proceed to the assessment on a full value basis, but reduce the final result by 60%.”

His Honour identified the “chance” thus:- “In a case such as the present, where I have determined that the plaintiff’s loss is the loss of the chance of improvement or cure of his symptoms by conservative means, rather than operative treatment, I must bear in mind the approach detailed by the High Court in Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638 ..”. Accordingly, his Honour assessed that Mr Bourke only had a forty per cent chance of having his symptoms improved or cured by conservative means, rather than by having the operation.

He set forth portion of the joint judgment of Deane, Gaudron and McHugh JJ at p.642, and continued:- “My assessment of the chance that the plaintiff would have obtained substantial improvement or cure from conservative means, without operation, including all the imponderables referred to above, is 40%.” This led Mr Sullivan to submit that there was a finding that it was more probable than not that the fundoplication operation would have been carried out in any event with the consequence that if Mr Bourke suffered from post-fundoplication syndrome, which he did not concede, that also would have happened in any event.

Both parties have appealed against his Honour’s findings, Dr MacNeil’s appeal concentrating particularly on causation, and Mr Bourke’s on the quantum of damages and, in particular, the extent of the reduction his Honour made for the perceived chance. Mr Toomey’s basic submission was that certain statements in Chappel v Hart (1998) 195 CLR 232, judgment in which was handed down after his Honour’s decision, led to the conclusion that once it was found that there was a failure to warn there was no room or justification for the operation of the “loss of chance” principle as the negligent act was complete and there was no basis for reducing the damages.

The case at trial presented a number of evidentiary and legal complications. At an evidentiary level the following matters were in issue:- (a) What Mr Bourke’s pre-operation condition was. There was much evidence from which a finding could have been made that it was the same as after the operation, the most compelling being statements made by him to a number of doctors both before and after the operation. (b) What Mr Bourke’s post-operative condition was. There was much evidence in histories provided by him that he felt well for some time after the operation, the difficulties of which he complained not commencing until about June 1985, in respect of which he did not seek medical advice until November 1985. (c) Various relatively contemporaneous doctors’ notes bore out his statements of satisfaction with the relief obtained after the operation and the subsequent, but much later, onset of further pain. On the other hand, his wife and some friends gave various, although not totally consistent, evidence of almost immediate pain and problems very soon after the operation. The significance of the temporal sequence is that the medical evidence was that post-fundoplication syndrome manifests itself almost immediately after the operation and then generally, and in the vast majority of cases, subsides. (d) There was the sheer improbability of Mr Bourke suffering to the degree to which he, his wife and friends attested from January to November 1985 without seeking any medical help. (e) There were statements made by Mr Bourke in support of an insurance claim that he had not commenced to suffer until June 1985, and to Dr Sharrock, who took a history for an invalid pension application, that he had been well for a lengthy period of some eighteen months to two years after the operation. (f) Apart from post-fundoplication syndrome, there was evidence that the symptoms of which Mr Bourke complained were only attributable to a truncal vagotomy and not to post-operative fundoplication. There was also evidence that the symptoms were attributable to a gastric motility condition, which he did have. The diagnosis in relation to the truncal vagotomy was obviously wrong, because he had no such operation, but the medical evidence in relation to it also provided evidence that the symptoms were not caused by the fundoplication. His Honour made no finding in respect of the other possible causes.

His Honour accepted the evidence of Mr Bourke and, at least inferentially, that of his lay witnesses. That, however, created rather than solved problems in determining the case in Mr Bourke’s favour. First, so far as Mr Bourke’s oral evidence was accepted it had to be ranged against the statements which, notwithstanding his denials at trial, the doctors recorded he had made. If Mr Bourke was a witness of truth one would have expected consistency between his evidence and statements to the doctors, or an acceptable explanation for the differences. The doctors made their notes when no litigation was contemplated and, in any event, most of them had no concern with any litigation. But they noted a consistent history, which, on Mr Bourke’s evidence, was quite wrong. No explanation for these discrepancies was offered. Secondly, his Honour made no finding that any of the doctors recorded the history wrongly or misunderstood what Mr Bourke told them. Nor did he find that Mr Bourke was a poor historian. Thirdly, if Mr Bourke and his friends were to be accepted, Mr Bourke was suffering in a very severe way from January 1985. This gave rise to the matter of improbability to which I have referred, viz the failure to seek medical advice until early November 1985, a period of some ten months. It was also at odds with the evidence of Mrs Bourke that if her husband was suffering severely she ensured he saw a doctor. He saw Dr MacNeil on two occasions, viz in January and March 1985, and, according to Dr MacNeil’s notes, not only made no complaint, but asserted that he had relief from the operation. There was no reason for Dr MacNeil not to record truthfully and accurately what he was told and no finding was made that he did not. Mr Bourke also told others that he did not start to suffer until June 1985. He saw Dr Fleming in early 1985 and was told by Dr Fleming that if he had any problems he should see him. Mr Bourke did not do so until November 1985.

Each of these evidentiary conflicts and problems demanded judicial confrontation. Unfortunately his Honour did not address a number of them. They also required consideration in the light of the operation having been carried out in December 1984, proceedings having been commenced in 1990 and the trial being held in 1997. It is hardly surprising that the lay witnesses had some difficulty of independent recall, thus adding weight to the desirability of recourse to reasonably contemporaneous documentary evidence as probably more likely to be accurate. An Analysis Of His Honour’s Reasons

His Honour identified the warning issue as that for determination, and dealt briefly with Mr Bourke’s background. He was born in Wagga Wagga on 19 February 1950, and carried out various forms of building and associated work until, in December 1982, he commenced his own concrete laying business, which was run through a family trust. At times he employed up to nine men. His Honour found that up to December 1982 Mr Bourke experienced significant stomach pains, including cramping and burning when he consumed alcohol, although this did not prevent him working. Inferentially his Honour found that these types of pain persisted until he consulted a general practitioner, Dr R.G. Fleming, on 15 October 1984, who diagnosed epigastric and abdominal pain and prescribed Librax. On 18 October 1984 a Barium Meal was performed, which revealed no particular abnormalities in the abdominal region and, although he continued to visit Dr Fleming, there was no improvement in his condition. He underwent an ultrasound and endoscopy and was referred by Dr Fleming to Dr MacNeil, who recommended the Nissen Fundoplication.

His Honour recorded that after discharge Mr Bourke claimed to have immediately suffered bloating of the stomach, which was accompanied by alternate periods of constipation and diarrhoea and, by the end of January 1985, he recommenced his concrete laying work but, by June of that year, had ceased physical work and was acting only in a supervisory capacity. On 4 November 1985, he returned to see Dr Fleming complaining of nausea, diarrhoea and severe stomach bloating and, after another endoscopy, Dr Fleming prescribed Tagamet on 13 November 1985. However, the bloating worsened and his wife and friends said the distension of his stomach was clearly visible to them.

Because of the continuation of severe stomach pain and the problems facing his business, Mr Bourke applied for disability insurance from MLC Life Insurance Limited in July 1986.

After a number of consultations with Dr Fleming and Dr Childs, the latter being a specialist physician who Mr Bourke saw before the fundoplication operation, Mr Bourke was referred by Dr Fleming to Professor Piper at Royal North Shore Hospital and, after two consultations with him, he had a Barium Meal which showed the fundoplication to be working adequately.

On 1 June 1987 Mr Bourke was again admitted to Royal North Shore Hospital and underwent an oesophageal motility study, Barium Meal and gastric emptying study. A subsequent endoscopy revealed that the fundoplication remained intact. Further tests at that hospital in 1987 revealed, for the first time, that there may have been some problem, which was not suggested to be relevant, as I understand it, for the purposes of this case.

In October 1987 Mr Bourke ceased to work in a supervisory capacity and closed down his business. Thereafter he received social security benefits from 16 November 1987 and, throughout that year, he had been consulting Dr Fleming for severe abdominal pain and bloating, which was treated by Pethidene and Bruscopan injected intramuscularly. That treatment appeared to have little effect and, on 5 February 1998, Dr C.P. Bambach performed an anthrectomy with a roux-en-Y reconstruction, which appeared to gradually and temporarily relieve the condition. By 4 November 1988 Mr Bourke was experiencing significantly smaller bouts of bloating and his sleeping had improved, although he was still unfit for work.

In February and July 1989, Mr Bourke consulted Dr J.E. Kellow at Royal North Shore Hospital and, on 27 November 1990, a Barium Meal was performed in which no intrinsic abnormalities of the stomach were detected.

Mr Bourke has not worked since 1986 and continues to undergo medical treatment.

After setting forth this history, his Honour dealt with the obligation to warn in the context of the High Court’s decision in Rogers v Whittaker (1992) 175 CLR 479 and with Dr MacNeil’s “case”. In the course of so doing he dealt with the conflict between Mr Bourke’s and Dr MacNeil’s evidence as to the extent to which a warning had been given and, Red Appeal Book p.36, concluded:- “On the whole of the evidence, on this issue, I have come to the conclusion that the plaintiff was not adequately advised by the defendant to enable the plaintiff to make a rational choice to undertake the surgery. I do not accept that the plaintiff was warned in the terms set out in para 4B of the Interrogatories. In particular, I do not accept that the percentages set out in that paragraph were conveyed to the plaintiff. Taken at their face value, they represent a 50/50 chance of cure. To my mind, it is inconceivable that the plaintiff would embark upon major surgery if the alternatives were presented to him in that way.”

His Honour accepted Mr Bourke’s evidence that the only risks about which he was told were those associated with anaesthetic, although he also accepted that Dr MacNeil would have explained “in general terms” the nature of the operation, and the risks associated with it “such as the risks associated with anaesthetic and other general risks”. His Honour was satisfied that Dr MacNeil would have explained “the possibility of some post-operative discomfort, including some digestive symptoms whilst the fundoplication was settling down”. There is, in my opinion, an inherent difficulty with this finding as his Honour made no specific finding as to what “other general risks” Dr MacNeil would have explained, nor as to what he told Mr Bourke about post-operative discomfort, and digestive symptoms, whilst the fundoplication was settling down. These matters were of obvious significance in a case where the issue was whether Dr MacNeil had given a proper warning.

His Honour continued:- “However, I do not accept that he would have explained the likelihood of no relief, nor do I accept that he would have explained the liability of the plaintiff to suffer continuing gas bloat to a disabling degree.”

He was of the opinion that the decision to operate was made without “much reference” to Mr Bourke “at all”, and that Dr MacNeil did not exercise sufficient care in outlining to Mr Bourke the alternatives to an operation. His Honour continued, Red Appeal Book p.37:- “Really, the plaintiff’s symptoms were not so marked that they cried out for operative intervention. He himself said that the symptoms were brought on, principally, following bouts of excessive drinking. The trial of medication was but for two-three weeks. Slight moderation of his lifestyle and a more intensive course of medical treatment may well have obviated the necessity for operation at all, in my opinion.” This finding is inconsistent with his finding that Mr Bourke had only a forty per cent chance of cure by medical rather than operative means. It also overlooks the evidence that Mr Bourke had been on medication for some six weeks before the decision was taken to operate, which the uncontradicted medical evidence stated was sufficient for it to be effective, if it was the proper treatment, and that Dr Childs did not consider Mr Bourke would be cured by taking medicine, rather than by an operation.

His Honour concluded this portion of his reasons by accepting the evidence of Mr Bourke that had it been explained to him that there may not have been a relief of his symptoms, he would have moderated his lifestyle and tried other medical solutions. He did not accept that his condition was as disabling as Dr MacNeil’s counsel contended for “such that he would have not tried more conservative means of relieving his condition”, notwithstanding that he found that conservative treatment had a less than fifty per cent chance of success. He said:- “It follows from the above findings, that I find that there was a material risk of persisting post-fundoplication syndrome, namely ‘gas bloat’, which was likely to be incapacitating to the extent of disablement from work, which risk was not explained to the plaintiff by the defendant, and, was of such a nature, as to be one to which the plaintiff was likely to attach significance and such that if explained to him, the plaintiff would not have proceeded with the operation. Further, I find that it was a risk, of which, the defendant was aware, on his own admission, but which he did not explain.” The passage is consistent with his earlier finding, to which I have referred, that the relevant consequence of the operation was post-fundoplication syndrome. The essential question is whether Mr Bourke proved this.

His Honour nextly considered causation in the context that the effect of his findings thus far was that Mr Bourke lost the opportunity of making an informed decision concerning his future treatment. He questioned whether, based on Mr Bourke’s evidence, he would have proceeded with the operation if it had been explained to him that the chances of cure or amelioration of the symptoms were in accordance with the proportions disclosed by the evidence. He acknowledged that Mr Bourke may have elected to continue with conservative medical treatment and moderation of lifestyle but, if that was not successful, that he may have been driven to the operation in any event, and he acknowledged that these were difficult questions to resolve. Somewhat repetitively one notes that the ultimate finding was that there was, in his Honour’s opinion, a sixty per cent chance that there would be an operation. It was submitted on behalf of Dr MacNeil that there was no evidence that a moderation of lifestyle and medication would have alleviated Mr Bourke’s condition. His Honour recognised that to put these questions into their proper context it was necessary to trace Mr Bourke’s post-operation history which he noted was the subject of “some conflict” in the evidence. In my opinion, a major difficulty is that this conflict, which was critical, was not resolved. The Histories

A month after the operation Dr MacNeil wrote a report to Dr Fleming advising that he had reviewed Mr Bourke, who was pleased with the comfort he had achieved since the operation and the absence “so far” of symptoms of his previous reflux. The letter continued that he suggested that Mr Bourke recommence work in about two weeks and have a final review in two months. On 13 March 1985 Dr MacNeil again reported to Dr Fleming stating that Mr Bourke had been back at work for six weeks and that he was pleased to say that Mr Bourke remained delighted with his result “and the forms of exertion associated with his previous severe comfort (sic) no longer cause any trouble whatsoever”. Dr MacNeil said that he had made no arrangements to see Mr Bourke again.

The significance of these histories, from Dr MacNeil’s point of view, was that the evidence was that if a post-fundoplication syndrome developed, it manifested itself within a short time after the operation. Further, the histories recorded by Dr MacNeil in those reports must be contrasted with the evidence of Mr Bourke, his wife and workers that soon after the operation he was suffering quite significant discomfort and bloating.

Mr Bourke said he “ran into” Dr Fleming at the supermarket and told him “I was just sore”. Dr Fleming asked him whether he returned to work too early, and Mr Bourke replied that he probably did to which Dr Fleming said that if he became any worse to come and see him. Mr Bourke said that was about three months after the operation and that he went to see Dr Fleming “near the end of the year”. That date was identified as 4 November 1985. Mr Bourke was asked why he waited so long to which he replied:- “Because I thought it was my own fault for going back to work too early.” However, his case was that the problems commenced before he returned to work. He said his condition when he went to see Dr Fleming in November 1985 was bloating and the trouble with his bowel was just getting worse.

Dr Fleming did not recall the conversation at the supermarket, but he said that had it occurred he would have advised Mr Bourke to see Dr MacNeil. For present purposes it matters not whether Dr Fleming told Mr Bourke to see him or Dr MacNeil. On any view he told him to seek medical advice if the problems continued, which Mr Bourke did not do for some eight months.

Nextly, Dr MacNeil relied upon the evidence of Dr Fleming, Black Appeal Book p.85, Dr Fleming having been called in Mr Bourke’s case. The Evidence Of Dr Fleming

In his evidence in chief Dr Fleming was taken through a report he prepared on 7 November 1988. He was referred, firstly, to the history of complaints he received on 15 October 1984. He had noted intermittent crampy epigastric and abdominal pain and “crampy belly ache worse over last few months, come and go”. He referred in his notes to indigestion and difficulties after drinking alcohol and to his arranging for Mr Bourke to have a Barium Meal and an ultrasound. His report continued that Mr Bourke’s condition continued to become worse. At Black Appeal Book p.83, he was asked about seeing Mr Bourke on 4 November 1985, when he noted his complaints were “nausea, vomiting and severe central chest discomfort”. He also noted:- “There was also a history of bloating, wind and crampy abdominal pains. That is the same as when first seen on 15 October 1984.”

At p.84 he confirmed that his symptoms were the same as when he had first seen him on 15 October 1984, although he made no mention of “bloating” on that date.

At p.85 Dr Fleming was asked about referring Mr Bourke to Dr Childs. He said he saw Mr Bourke on 12 September 1986, and he was asked whether he would have referred him for further review if he thought his condition was the same, to which he replied:- “A. His condition - I am not quite - his condition had progressively, from what I can see here since when I saw him, he had his operation on 10.12.84 and I then saw him nearly twelve months later on 4.11.85 and that was when he started to get his nausea, his vomiting and discomfort and he in fact got worse because, as you can see, he was taking increasing amounts of Tagamet trying to relieve himself so that is when I referred him for further review.” He said he referred him because he thought the condition was “deteriorating”.

In cross-examination Dr Fleming agreed that in a letter he wrote to an insurer on 15 October 1987 he described a history of “constant epigastric and central chest discomfort for months prior to seeing me on October 1984”, and he confirmed that was the history he received. He also agreed that “constant” meant that the pain was present all the time and not just when Mr Bourke had drunk alcohol to excess, that the epigastric pain was constant and that if Mr Bourke had told him the pain was simply related to drinking his advice would have been to stop drinking. Dr Fleming agreed Mr Bourke’s troubles were much more complicated than that.

Dr Fleming had a history on 15 October 1984 of Mr Bourke’s being a concreter and that every time he bent over the pain became worse and:- “Q. Now you have written, do you agree, ‘in view of the severe incapacitating nature of the complaint’? A. Yes. Q. Can the Court take that although he may not have used the word ‘incapacitating’ he described his problems as being so severe that they were incapacitating him? A. Yes. Q. And they were causing him serious problems with his work? A. As far as I am aware, yes. Q. And was that on the basis of what he told you? A. Yes. OBJECTION Q. And that is on the basis of what he told you in October 1984? A. Yes, as far as I can understand, his condition didn’t greatly alter from over that period of time. That is why he had all the investigations”: Black Appeal Book p.88. Thus, there was evidence in Mr Bourke’s case that in October 1984 he was suffering in a way which caused “serious problems with his work”, evidence to which his Honour made no reference. It is evidence which significantly affects his Honour’s observation (Red Appeal Book p.17P), just before referring to the 15 October 1984 consultation with Dr Fleming, that “the plaintiff was not prevented from working as a result of these pains”. It also sits badly with Mr Bourke’s testimony, which as summarised by his Honour at Red Appeal Book p.25K, was that he “strenuously disagreed that [his discomfort] had prevented him at any time from performing his work as a concreter”. It points against the following finding of his Honour (Red Appeal Book pp.37V-38C): “I do not accept that the plaintiff’s condition was as disabling as the defendant’s counsel contends, such that he would have not tried more conservative means of relieving his condition”.

Dr Fleming agreed that he had written that following the operation Mr Bourke felt well until about mid-1985, when he developed symptoms of irritable bowel syndrome with retrosternal and epigastric discomfort, and that his note that Mr Bourke felt well could only have come from something Mr Bourke told him. The history was contrary to the evidence of Mr Bourke and his lay witnesses, consistent with other admissions made by Mr Bourke, consistent with the position explained to Dr MacNeil and inconsistent with the evidence as to the time within which post-fundoplication syndrome manifests itself.

Dr Fleming said that he noted on his card for 4 November 1985 Mr Bourke’s complaints of nausea, vomiting and central chest discomfort and that his condition was “same as when first seen on 15 October 1984”. He agreed that in a later report he wrote, in relation to the November 1985 consultation:- “There is also a history of bloating, wind and crampy abdominal pain, i.e, the same as when first seen on 15 October 1984.” He said that he took care to accurately set down the history Mr Bourke gave as best he could, and:- “Q. When you wrote there was also a history of bloating, wind and crampy abdominal pain the same as when first seen on 15 October 1984, you were clearly intending to indicate that all of the symptoms were the same nature of symptoms as he had presented with on 15 October 1984, is that not right? A. That is as I have written it, correct. Q. And in 1988 when you prepared this report your memory of the plaintiff’s condition in 1985 would have been better than today? A. That is correct. Q. And you are confident are you not that the plaintiff’s symptoms as at 15 October 1984 included all of those things, bloating, wind, crampy abdominal pain, nausea, vomiting and severe central chest pain? A. I have omitted, as you can see, a couple of things there like central chest pain or the pain recorded on 15.10.84 and another his bloating has not been recorded but if you look at the end of that you will see I have prescribed Librax and then I have written a diagnosis of that. I basically have treated this man for irritable bowel syndrome which in fact I would not have done if I did not think he had it so going back over that, the answer to your question is yes but I would have thought all those things would have been the same on 15.10.84. Q. The plaintiff did have the bloating and wind and crampy abdominal pain back in October 1984 as he told you? A. I would have said yes.” This was very significant evidence. It showed that Mr Bourke had essentially the same problems before as after the operation. Yet Mr Bourke denied that was the position, complaining that the pre-operative pain was caused only by over indulgence in alcohol.

Dr Fleming agreed that irritable bowel syndrome was a generalised problem of motility in the gastrointestinal tract, which was associated with crampy abdominal pain, feelings of distension and bloating and constipation, and is thought to be due to problems with the propulsion of foods or muscle action throughout the gastrointestinal tract. That of which Mr Bourke was complaining before and after the operation was consistent with the motility problem.

Dr Fleming said that irritable bowel problems were common in his practice and he had a lot of experience treating them, and, Black Appeal Book p.92:- “Q. Given that you took a history that the plaintiff had this abdominal pain, bloating and wind and other symptoms prior to his operation with Dr MacNeil? A. Yes. Q. You would agree he had more than an irritable bowel syndrome before the operation? A. Yes.”

Dr Fleming was asked to describe the symptoms of which Mr Bourke told him. He said he had not recorded them but if there was a record of something like irritable colon or irritable bowel in the notes that meant to him:- “.. you have a crampy bowel, abdominal distension and probably alternating constipation and diarrhoea.”

Dr Fleming agreed that on 24 June 1988 Mr Bourke was suffering from irritable bowel syndrome, which he treated, and, by 30 June 1988, he again thought Mr Bourke had severe irritable bowel syndrome, which he treated. He continued to treat him for that problem from 28 July 1988 and he considered that his predominant problem was irritable bowel syndrome at that time, and:- “A. But not in - 84 when he presented. He had both excessive acid symptoms as well and crampy pain whereas at this point in time he was going through a bad phase with more irritable bowel syndrome than I thought with constipation as you can see there, a lot of wind and a lot of distension and a lot of pain. I have not recorded a lot of burning and indigestion during that time.”

At p.95 Dr Fleming agreed that in 1988, 1989 and 1990 Mr Bourke had far more problems from irritable bowel syndrome than from his acid problem.

Dr Fleming was asked what he would have done if Mr Bourke, having undergone a fundoplication, mentioned to him in a car park that he had developed symptoms including severe bloating post-operatively. He said he would have told him to make a time and come back to see him, and if he was satisfied that the symptoms as described to him by the patient were significant, he would recommend he go back and see his surgeon.

At Black Appeal Book p.101, Dr Fleming said that on 23 April 1987 he diagnosed irritable bowel syndrome and, in his report of 7 November 1988, he said that he considered Mr Bourke to have gastro-oesophageal reflux with surgery and post-operative gastric stasis with further surgery, although he agreed that in relation to these diagnoses he would defer to surgeons and gastroenterologists.

In re-examination, Black Appeal Book p.102, Dr Fleming was asked about the position on 15 October 1984 in which he had referred to nausea, vomiting, severe central chest disorder, bloating, wind and cramping abdominal pain. He said Mr Bourke was distinguishing between two sets of symptoms and, at Black Appeal Book p.103, he said there was a change in Mr Bourke’s condition between the condition before and the condition after operation in that he was better after the operation. He continued that initially Mr Bourke improved:- “.. and then he came back to see me on 13 - 4/11/85 when he obviously started to go bad again.”

Dr Fleming said that Mr Bourke’s condition deteriorated from November 1985, and he treated him for irritable bowel syndrome.

Subsequently Dr Fleming was recalled and, at Black Appeal Book p.106, he was asked by Mr Toomey, who was given leave to cross-examine him on a limited basis, about a letter of 28 July 1986 from MLC Disability Insurance and his reply. The cross-examination, as I understand it, went to the question as to whether there had been a vagotomy.

At p.109, in re-examination, Dr Fleming gave further evidence in relation to the meeting in the supermarket and he said that whether he would have suggested to Mr Bourke to return to see him would have depended on his impression of the severity of the symptoms being described to him. The Evidence Of Dr Childs

On 5 November 1984 Dr Childs, who was called by Dr MacNeil, wrote to Dr Fleming, after examining Mr Bourke. He performed an endoscopy and concluded:- “As we discussed by phone today, this chap warrants a full week course of acute anti reflux medical treatment but I fancy it will be less than successful. This being so, I think that his age would warrant consideration for surgery. He will be in tomorrow to have a chat to you about his immediate treatment.” His Honour did not set out this evidence when assessing whether Mr Bourke should have been left on medication.

Dr Childs said he saw Mr Bourke on 29 October 1984, and received a history of:- “Four months ? Stress related. Abdominal troubles. Constant upper abdominal soreness. Backache. Exacerbation twice per week, usually early hours of the morning. Bloating. Some upper abdominal pain. Bends over to ease pain. Nausea plus plus. No vomiting. Occasion water brash. Belching plus plus. Abdominal rumbles. Bowels okay. Occasional loss of bowel control. Weight increasing. Seven pounds over two months. Now approximately ten stone ten pounds. Upset by hot coffee. No specific food aversions. General health good. Respiratory cardiovascular urinary normal. Not sleeping well. Waking 2 am to 3 am. Non smoker. Social alcohol. Therapy Librax, Nembudeine. N.B.G.. Barium meal normal. Ultra sound abdomen? Pancreatitis. Urine clear.”

Dr Childs described “bloated” as “Fullness. Distinct abdominal fullness. Distension”. He said he did not find that on examination but it was a symptom, although he then noted an entry:- “And bloated but fullness and tenderness”, which he found on examination.

Dr Childs said that he thought surgery was necessary because there was substantial reflux and, Mr Bourke was young and was carrying out a job which necessitated bending and lifting, which would tend to exacerbate reflux systems. He said he anticipated that the drug regime he prescribed, if it was to have an effect or any significant effect, would operate within one week. Clearly, Mr Bourke was subject to this regime for longer than that before the operation, viz some six weeks. His Honour said, incorrectly on the uncontradicted evidence, that it was a much shorter time, viz two to three weeks. Dr Childs also received a pathology history on histology, which revealed Barrett’s oesophagus, which he said tended to increase the risk of cancer, requiring regular surveillance and biopsy of the lower oesophagus at least every twelve months.

He was asked to assume that by the time Mr Bourke saw Dr MacNeil on 19 and 26 November 1984 he reported only slight relief from Gaviscon and Tagamet. He said that would not surprise him, and that Mr Bourke should, in all those circumstances, have been offered surgery as an alternative to medical management. He was also of the view that assuming that by 10 December 1984 the medical treatment had not given any significant relief at all, it would seem less likely that medical management had any long term future in his overall management.

Dr Childs did not see Mr Bourke until November 1985, after which he wrote his report of 7 November 1985. The histology report indicated that the Barrett’s oesophagus had regressed.

On 7 November 1985, he reported to Dr Fleming: Exhibit 24 Blue Appeal Book p.676. He stated:- “Following his fundoplication in November 1984 Mr Bourke felt ‘terrific’ and remained thus until a few months ago when he began to have further GIT symptoms - these seem to fall into two types, one group being quite typical of an irritable bowel syndrome and the other more consistent with pylorospasm or gastritis, consisting of high epigastric pain with bloating and wind. He has had no actual reflux symptoms. His weight has dropped by about one stone.” Thus the history, as to the onset of further problems, was consistent with that given to Dr Fleming and Dr MacNeil, and inconsistent with post-fundoplication syndrome.

Dr Childs examined Mr Bourke and carried out an endoscopy noting that: “.. the degree of reflux was negligible and the fundoplication appears to have been, technically, quite effective.”

Dr Childs found a considerable increase in the quantity of resting gastric secretion and that the pylorus was very irritable. He considered Mr Bourke’s acid secretion “must be fairly substantial”, and he continued:- “.. but the pylorospasm could be contributing to some of his pain and bloating symptoms. However, it is rather disappointing to find this erosive oesophagitis.”

Dr Childs saw Mr Bourke again in September 1986 and, on 24 September 1986, he wrote to Dr Fleming:- “ After a period of initial excellent health following his fundoplication , Mr Bourke again began to suffer from upper GIT symptoms with pain, flatulence, bloating and considerable nocturnal discomfort. Conventional doses of Tagamet were ineffective as was the change to Zantac. Mr Bourke now manages to barely control his symptoms with about six Tagamet daily but is sleeping badly and finds that his work (he is self employed) is suffering.” (My emphasis.)

Dr Childs carried out a further endoscopy and formed the view that Mr Bourke was not adequately controlled by his present therapy. He said that he would seriously consider vagotomy to control his acid secretion.

In cross-examination Dr Childs agreed that Mr Bourke was referred to him primarily for an endoscopy, his function being to carry out tests and to report to Dr Fleming regarding his opinion, but not to continue treatment personally. When Dr Fleming sent Mr Bourke to him in November 1985 his function, as a gastroscopist, was to assess what was happening endoscopically, once again the primary function being to test and to report to Dr Fleming. He agreed he only had his notes upon which to rely, which is not surprising having regard to the fact that he was being cross-examined some twelve years after the second consultation. None-the-less they were a contemporaneous record and no reason to doubt them was suggested.

He was cross-examined about the description of bloating, agreeing that Mr Bourke said he had a feeling of fullness in the epigastrium, which is the upper part of the abdomen, which he would not describe normally as a “pot belly”. Dr Childs agreed that in November 1984 he received a history of a half stone increase in weight over the months “immediately before he saw you”; that the normal Barium Meal would suggest no delayed gastric emptying; and that that, in turn, “would probably be consistent with no distension of the stomach”. He also agreed that people with those symptoms decided not to have surgery, stating that it was their decision and:- “There are two major problems with a patient. One is burning discomfort related to acid. The second is the physical discomfort of reflux which can remain a major problem despite acid suppression”: Black Appeal Book p.394.

Dr Childs said that patients learnt to live with these symptoms and he went on to describe the development curve of anti-reflux medication, and that had Mr Bourke not had surgery he would have advised a trial of Bethanocol, and that it was difficult to say what the ultimate result of treatment with medications would have been because of surgery.

At Black Appeal Book p.395 Dr Childs stated that his notes were that the endoscopy revealed a congenital shortening of the oesophagus rather than oesophagitis. He was asked what surgery would be warranted for that congenital condition, and he replied that a congenital short oesophagus was a term fairly widely used then “when in fact we realise it was a Barrett’s oesophagitis”, which he described, the oesophagus being shorter not by virtue of a congenital situation, but by the stomach lining cells growing into the oesophagus and:- “Q. Well, it is still not clear. What surgery then is warranted for what was thought to be or what was described as a congenital short oesophagus which you have just said really was a Barrett’s oesophagus? A. Yes, well surgery under those circumstances by reducing reflux allowed the normal oesophageal mucosa to re-colonise further down the oesophagus, thus restoring the normal pattern. Q. And the surgery is fundoplication? A. Fundoplication. Q. Then would the surgery or recommended course of treatment be different if the diagnosis was one of oesophagitis? A. At that time no, one would still trial the available or the drugs to reduce acidity and, if possible, restore the integrity of the valve between the stomach and the gullet.”

Dr Childs described how he would have treated oesophagitis. That was by various medications and a diet regime and the “avoidance if possible of too much bending, lifting”. But he said that that would not constitute a cure if there was substantial reflux through a weak valve because the problem was mechanical. He said the steps he would have taken might have made the patient more comfortable, but would not really control the underlying problem, which he described as reflux and physical. He agreed that Bethanocol may have helped and he certainly would have tried anything that may have helped.

In re-examination Dr Childs said that the pathology report of 5 November 1984 indicated Barrett’s oesophagus, which he said was a different condition from reflux. He also said that he did not advise Bethanocol and, Black Appeal Book p.398:- “Q. Given the previous history of the plaintiff, his personal characteristics which you described before including his build, the nature of his work and also the Barrett’s oesophagus what would you have regarded as the likelihood of Bethanocol controlling his problems? A. I think I have already said I think it unlikely that it would have substantially helped the patient’s symptoms. Q. In answer to a question by my learned friend you referred to a number of non-medical aspects or non-pharmaceutical aspects of treatment including small meals, I think bending over and those sorts of things. Compared to the chemical treatment of reflux and its associated problems, how important are they? A. They are of peripheral value.”

He repeated that what he observed was consistent with Barrett’s oesophagus.

Dr Childs was not challenged on the history he received from Mr Bourke and, in particular, he was not challenged on that part of the history stating that after a period of initial excellent health following his fundoplication, Mr Bourke again began to suffer the symptoms he described. The Evidence Of Mr Bourke

Mr Bourke gave his history, which included his having a cramping of the stomach from about late 1970 or early 1971. He described his work, including his work as a concrete contractor, and he said the stomach pains continued between 1971 and 1984 being “pretty well always brought on after drinking and just when I drank at various times”. He said he was a social drinker, drinking ten to twelve middies “probably” from time to time. He said the problems associated with drinking continued until 1984, but did not cause him to lose even a day’s work and he would “just work through”. He described the pain as bad cramping in the stomach and burning in the lower part, which lasted from a day to two days and was not aggravated by any particular sort of work. His work involved the screeding of the concrete, which involved bending over and working with a straight edge for as long as six hours at a time. He said he was able to do that “despite the pain in the stomach”. He described consulting Dr Fleming in October 1984 after having “been drinking” over the previous week-end. He said his problems, when he saw Dr Fleming, were:- “The same kind, the cramping in the stomach and the burning” indicating the upper part of the stomach where “it had always been”. He was referred to Dr Childs and then to Dr MacNeil. He said he told Dr MacNeil about his complaints as best he could. There was a discussion about surgery and he said Dr MacNeil explained what he would do, which involved a Nissen fundoplication to prevent his body producing too much acid. At Black Appeal Book p.9 he was asked whether Dr MacNeil told him anything about any risks of the procedure, and he said:- “I just wanted to know about the time off work and he said I would have four weeks off and then I could go for two weeks on light duty and then the only risk was the anaesthetic. He gave me some large figure that something could go wrong but he said that wouldn’t be a problem and he said I would be able to continue my work as I wished after my recovery.” He denied he was given any percentages of the likely result of the operation or of the patients who did not get relief from it at all, or of the patients improved with a worthwhile degree of control but with digestive complaints of a varying degree. He denied that he was told anything about bloating, constipation, the prospect of continuing pain after the operation, the risk of an inadvertent or accidental cutting of a nerve in the oesophagus, and:- “Q. Had he told you of these things would you have had the operation? A. No. Q. Why not? A. I would have given up drinking because that was, I would have tried that and continued on the tablets and hoped for the best. Q. You would have continued the medication? A. Yes.”

He gave evidence about having the operation and how he felt after it. He said that:- “Instantly once I started to move I got bloating.” He described that as his stomach filled with air he would bloat more and the pain “just got greater and I didn’t know what was happening”. He said the pain was in his stomach and associated with bloating, but was not the same as the pain he had before. In addition, he had trouble with his bowels by way of constipation and diarrhoea. He said he saw Dr MacNeil after the operation and:- “Q. Did you tell him about this problem? A. Yes, told him about the bloating and that, yes. Q. What about the constipation? A. I can’t recall if I said about that. I just thought I would have troubles after the operation anyway. Q. What did you tell him about the bloating? A. I told him about it and he said that that was quite common after major surgery. I was gulping air and he said that would go away with time. Q. Did it go away? A. No, it didn’t.”

Mr Bourke returned to work about the end of January 1985. He said that although he was very sore he persisted for months, but working was getting harder and he changed to supervising because he was “just in too much pain”. The change was said to have happened in June 1985. He did not see a doctor until early November 1985. He said the pain was caused by movement as the day went on and:- “I would just bloat more and first of a morning I wasn’t too bad and as it went on I just got that way I wasn’t able to do anything.” He said there was no particular body posture which affected him. He gave evidence of speaking to Dr Fleming, having met him by chance at the supermarket, about three months after the operation. He told Dr Fleming he was sore, and said that Dr Fleming asked whether he went back to work too early to which he replied that he probably did. Dr Fleming, according to Mr Bourke, told him to go and see him if he got any worse. He said he did not go to see Dr Fleming until the end of 1985 because he thought it was his own fault for going back to work too early, and that by the time he went to see Dr Fleming the bloating and the trouble with his bowel was just getting worse. He also had nausea, which he did not have before the operation. Dr Fleming referred him to Dr Childs and, thereafter, he took various medication, which did not help.

He made a claim on his disability insurance policy in July 1986. At that stage he had “massive pain” in the stomach “from the bloating”, trouble with his bowels “not working” and nausea, all of which was getting worse “all the time”.

In 1987 he was referred to Royal North Shore Hospital, to which he was admitted on 1 June 1987 and, on or about 4 June 1987, he had an oesophageal motility test, and various other testings. He returned to Royal North Shore Hospital on 17 August 1987 and came under the care of Professor Piper initially and then Dr Kellow, and was discharged on or about 24 August 1987. He continued to see Dr Fleming and, in October 1987, he had a further gastric motility study at Royal North Shore Hospital after which he did not work again.

On 4 February 1988 he was re-admitted to that hospital and, at the suggestion of Dr Kellow, Dr Bambach operated on him. The operation had no effect and, thereafter, he continued to be treated by Dr Fleming, but the medication did not help. In May 1991 and April 1996 he saw Professor De Carle on behalf of Dr MacNeil.

Mr Bourke described collapsing in 1988 when he had pushed himself too far and the pain became too great. He lost consciousness.

In cross-examination he denied that his condition was more severe before Dr MacNeil’s operation than he recalled and that he had forgotten symptoms he had before that operation. He repeated that he had burning in the top part of his stomach and increasing pain in it, which were the only symptoms. He said he had no problems with work because of those matters, nor any nausea, bloating or trouble with bowel movements. He could recall no sleeping difficulties.

At Black Appeal Book pp.26-27 he gave the following evidence:- “Q. I suggest to you, you told the doctor who admitted you on 1 June 1987 that you had had many years of pain exacerbated by work or movement. What do you say to that? A. Yes, many years was many of the years after the operation, which would be a couple of years or whatever it was. Q. So you say that the relationship of the pain to your work did not happen at all before the 1984 operation. Do you say that or - A. That’s correct, yes. Q. Isn’t it the case that you had problems with your work due to your symptoms before the 1984 operation? A. No.” This evidence was inconsistent with the history he had given. He said he was sure about that and he did not recall telling the doctor on 1 June 1987 that he had vomited blood before his operation. He volunteered that before Dr MacNeil’s operation he believed he had an ulcer because of the burning in the stomach, but he had no recollection of vomiting blood. He attributed his problems to drinking alcohol from time to time.

He denied he told Dr Childs that he had flare-ups of pain about twice a week and episodes of pain, which did not simply follow drinking. He denied he told Dr Childs on 29 October 1984 that he felt regularly bloated or that he felt “like being sick” or “like vomiting”. He denied saying anything to Dr Childs about belching or that he had for many years suffered an embarrassing loss of bowel control.

He agreed Dr Childs could have started him taking Tagamet around the end of October 1984 and that he took it in accordance with instructions given to him right up to the operation on 10 December 1984. He agreed he took it for several weeks and it did not help. This is consistent with Dr Childs’ evidence that medication would not help.

At Black Appeal Book p.36 Mr Bourke agreed that his discomfort was getting worse and prolonged by the time he saw Dr MacNeil in 1984 and that when he was drinking it was getting worse, but he was still continuing to work. He told Dr MacNeil that his symptoms had been making it difficult for him to continue working when he had them, the difficulty being that he was uncomfortable. He agreed he told Dr MacNeil that the situation was making his life “in general” “miserable”, but he denied that his symptoms had got to the point where it was making it hard for him to turn up to work. He denied saying to Dr MacNeil that various things at work made the pain bad, and that long days of stooping as a plasterer made the pain worse. He agreed he had had no relief from Gaviscon or Tagamet. He denied a feeling of bloating or nausea or loss of bowel control and:- “Q. I suggest to you that indeed in describing your symptoms after Dr MacNeil’s operation, you have subsequently said that you had the same symptoms before Dr MacNeil’s operation as you had afterwards? A. No. Q. I suggest that on 1 June 1987 you told the doctor at Royal North Shore who admitted you that the pain you were having at that time, June 1987, was the same as the pain that you had had prior to Dr MacNeil’s operation? A. No. Q. I suggest that you told Dr Fleming in November 1985 or at least before that, that you had the same symptoms then, that is November 1985, as you had had when you first saw Dr Fleming on 15 October 1984? A. As in the pain, yes. When I say pain, when I am bloated I have got pain, before I got the pain when I drank. Q. You also had this bloating before? A. Not before.”

At this stage it had been put fairly to Mr Bourke that he was describing the same symptoms both pre- and post-operatively. There was an abundance of evidence in the medical histories, which the doctors had taken, to support this view assuming that Mr Bourke had given an accurate history and the doctors had correctly recorded it. No reason was suggested to the doctors why they would not do so, nor why the contemporaneous notes they took would not be accurate. Mr Bourke’s evidence contradicted the correctness of those notes. This raised an issue which, in my opinion, his Honour had to determine, namely why there was such a discrepancy between the history Mr Bourke had given to the doctors and his evidence. This was an issue with which his Honour did not deal, other than saying that he accepted Mr Bourke as a witness of truth. This finding, however, only highlighted the problem because if, as his Honour found, Mr Bourke was a witness of truth, the conclusion would follow that his history to the doctors would be truthful, or there would be some explanation why the doctors had an inaccurate history. No case was sought to be made that Mr Bourke was a poor historian or could not, because of the effluxion of time, remember.

Mr Bourke agreed that no treatment he had ever been given provided any relief, although he agreed he was taking longer to get over problems after he had been drinking: Black Appeal Book p.40. He said he was keen to get a tablet that would fix him. It was put to Mr Bourke that Dr MacNeil did not tell him that he proposed to cut nerves in the operation in November 1984 and that he was confusing that with a subsequent operation, and he denied that he could have been wrong about the symptoms of which he complained. He repeated that he was concerned about how the operation would impact on his work life and that Dr MacNeil told him that he would cut and tie off the nerves because his body was producing too much acid. He added that Dr MacNeil said that after six weeks he would be “back at work completely normal”. He denied that Dr MacNeil told him that by no means all patients got complete relief of symptoms, and that he was told various percentages or that some patients got a distension of their stomach. He further denied that Dr MacNeil told him that if he had any doubt about the operation he should postpone it and try other non-surgical treatment.

At Black Appeal Book p.44 Mr Bourke said he returned to work in the early months of 1985 and carried out his former work for the first few weeks.

At Black Appeal Book p.45 Mr Bourke gave the following evidence:- “Q. I should have asked this before. Sir, I suggest that the time you saw Dr MacNeil that you were so motivated, so highly motivated to get something done about your longstanding abdominal problems that you would have gone ahead with Dr MacNeil’s operation no matter what he told you about the various risks? A. Not if I thought I wouldn’t be working. I would have tried anything else. Q. I understand your problem with the word ‘keen’ that I used before, but I suggest to you that you showed no reluctance whatsoever about having an operation done? A. When Dr MacNeil said I needed the operation, I spoke to my wife Denise and I said I must be worse than I thought I was. It turned out it was right near Christmas, so if it had to be done, that was the perfect time to do it. Q. If you had been told that because of changes found in your oesophagus by Dr Childs’ endoscopy you had a much greater chance of getting cancer than normal people, you would have certainly accepted advice to go ahead with the operation, wouldn’t you?” This question was objected to and disallowed. Mr Toomey submitted to his Honour that there had never been any such suggestion made and there was no material that that prospect motivated Dr MacNeil. Mr Toomey further submitted that it changed the whole nature of the case. Dr MacNeil in this Court challenged his Honour’s disallowance of this question.

Mr Bourke said that in the first few months of 1985 he felt “reasonably good”, although he was sore, which he attributed to the operation. He described this soreness as being in the stomach “but I was bloating”.

He recalled seeing Dr MacNeil and he asserted that he told Dr MacNeil that he was “bloated”. He saw him a second time and said that he told him that he was still “bloating”, and that Dr MacNeil told him that it would just take time, after major surgery, to settle down. This evidence was in total conflict with Dr MacNeil’s contemporaneous notes. He denied that he told Dr MacNeil that he did not have any troubles with work since the operation, and he said it would be wrong to say that the symptoms did not return until November 1985. His evidence was that he got bloated straight after the operation, and that he had trouble with his bowels and pain in his stomach, which he attributed to working too early and trying to do too much. He said it was incorrect that for several months after the operation he was “completely happy” and suffered no bloating or significant discomfort, but he agreed that he did not see any doctor between March and November 1985. He denied that the symptoms, which he said developed after the operation, did not come until at least June 1985 and he repeated the conversation he had with Dr Fleming at the supermarket. He denied that he told Dr Fleming that he felt well until mid-1985, or that he told a doctor that it was in June 1985 that he developed severe pain and discomfort in the stomach, which gradually became worse. He volunteered:- “Look, I said before I just blamed it all on myself at least until it got to the stage where I knew something was wrong.”

He denied he told Dr Childs he felt “terrific” for at least a few months after the operation and that in September 1986 he told him that he had a period of excellent health after the operation.

At Black Appeal Book p.53 Mr Bourke was shown a piece of paper, which was identified as a personal insurance claim form. He agreed it appeared to be so and that he had signed it, and that the answer to the question as to the nature of the illness was:- “Severe pain and discomfort in the stomach.” He also agreed that another question was when that first became evident, and that the answer was:- “About June 1985, gradually becoming worse.” Mr Bourke agreed it said that and:- “Q. And there is another question: ‘Have you ever suffered or sought treatment for the illness, in respect to the illness for which you are now claiming. If so give details, including the date you sought treatment and the consultation’ you have said, ‘Yes, and had operation in December 1984’? A. Yes. Q. Have I put to you accurately what has been set out on the form signed by you on 24 June 1987? A. Yes. Q. Does that not cause you to think that maybe to-day your recollection as to how things were in the first few months in 1985 is wrong? A. No, because I said before I was told the bloating would settle down. The pain, I thought that was from the operation and I just thought it was normal, because I was working then.”

He agreed that whenever the symptoms started they gradually got worse, and he denied that he told Dr MacNeil in November 1986 that he had obtained good relief from his abdominal symptoms until September 1985 but he had increasing discomfort after that month. He also denied he told Dr MacNeil that he had burning problems since June 1985.

His Honour referred, Red Appeal Book p.40, to a claim made in 1986 for disability insurance and to the reports of Dr Childs and Dr MacNeil of 1986. In Dr MacNeil’s report, Exhibit 16, dated 5 November 1986, Dr MacNeil acknowledged, as his Honour pointed out, that a great deal of the discomfort was epigastric and accompanied by a bloated feeling “which may be a late effect of his Nissen fundoplication”. The report concluded, this passage not being set forth in his Honour’s reasons:- “In summary there is a need to sort out what proportion of his symptoms are due to oesophageal reflux, hyperacidic gastritis or post-fundoplication bloating syndrome. To assist in this I have arranged for a Barium Meal to be done and in addition I will talk to Varney Childs about the detail of his recent gastroscopy. I’ll write to you again after I next see Mr Bourke about this. Many thanks again for referring this patient.”

His Honour recognised, obviously correctly, that Dr MacNeil had left open the possibility that there may be a late effect of the operation he had performed. However, this raised the problem, with which his Honour did not deal, that Mr Bourke had not complained about late effects, but early effects. Thus, so it seems to me, it was not available for his Honour to rely upon this history, if he was otherwise accepting that Mr Bourke’s version in some way supported his case. The Evidence Of Professor Piper

His Honour referred to the evidence, which was in the form of reports, of Professor Piper. Objection was taken to the admission of this evidence on the basis that he was not available for cross-examination because he was suffering from Parkinson’s Disease. Mr Bourke first saw Professor Piper on 27 April 1987. He reported on Mr Bourke’s complaints by stating that his problems “now relate to epigastric and retro-sternal pain, which has been constant and much worse since Christmas, interfering with his work and social activities, despite the fact that he is an industrious, hard-working man”.

Professor Piper referred to the nature of that pain and to another group of symptoms, which he said related to excessive dorborygmi and excess rectal flatus. He noted that there was no abdominal distension and, after carrying out further investigations, concluded that the fundoplication was working adequately. He commenced Mr Bourke on Bethamecol and, on 1 July 1987, reported that after admission to Royal North Shore Hospital on 1 June 1987 an endoscopy was performed and Mr Bourke was found to have no oesophagitis and a very successful fundoplication. He continued:- “On reviewing his history, it was obvious to me and to one of my colleagues, who is smarter than I in this field, that he has the gastric distension syndrome secondary to fundoplication, which is a recognised complication, the fundoplication being so successful, that patients cannot regurgitate air formed in the stomach, and this caused gastric distension and a dyspeptic syndrome. Also, another complication of fundoplication is delay in gastric emptying, and measuring this by sophisticated methods, he was found to have impaired gastric emptying, and this could further contribute to his gastric distension, and the symptoms of which he complained.”

In his first report of 1 May 1987 Professor Piper, in writing to Dr Fleming, stated that Mr Bourke had given a long history of retro-sternal discomfort since childhood and, in recent years, oesophagitis due to oesophageal reflux “and had a fundo-plication operation which resulted in some relief, but his symptoms recurred, and he has been on Tagamet”.

The report continued with the passages to which his Honour referred in Red Appeal Book p.42. Professor Piper considered that Mr Bourke presented “a very difficult diagnostic and therapeutic problem”.

After further investigations, Professor Piper gave another report dated 1 July 1987. His Honour quoted from it and summarised it at Red Appeal Book pp.42-43. The difficulty in this report is that it is not clear to which history Professor Piper was referring.

On 1 September 1987 Professor Piper again reported to Dr Fleming and based upon a review of “his whole history” he concluded that Mr Bourke was being crippled by fairly typical symptoms of aerophagy “which as we have stated previously is almost certainly a complication of his fundoplication”.

In the penultimate paragraph of that report Professor Piper said:- “One must emphasise, however, that all the measures done in the past are reasonable in the light of knowledge then available, but he falls into the small group that has fundoplication and has this unusual complication.”

Professor Piper also prepared a medico-legal report. He set out what he considered were the salient features of the medical history by stating that in 1984 Mr Bourke sought medical advice because of dyspepsia, which had been present since childhood. He noted that he was treated with Tagamet, which had no response, and that he was then referred to Dr MacNeil, who performed the fundoplication operation. He noted:- “Initially, the patient responded well.” He continued:- “However, in 1985, he had a recurrence of the dyspepsia, which made work almost impossible. Endoscopy performed then showed that reflux was controlled, but he was placed on Tagamet.” His history of a good response initially and the subsequent problems in 1985 was consistent with that given to Drs MacNeil, Childs and Fleming.

Professor Piper then moved forward to 1986 and to Mr Bourke’s reference to him in February 1987, when Mr Bourke gave a history “of reflux disease since childhood”.

Whilst Professor Piper was of the view that Mr Bourke had been properly treated, he concluded:- “Unfortunately, Mr Bourke developed after operation symptoms which are often seen in surgically treated patients of reflux disease. From my contact with doctors concerned, all treated Mr Bourke with empathy, kindness and skill, and they had done their best to solve his problem.”

Exhibit L were the notes of Royal North Shore Hospital, which were admitted over objection. A history was apparently taken on 1 June 1987 and the “presenting symptoms” were stated to be “Abdominal Pain many years”. The fundoplication operation in 1984 was noted. The notes confirmed the complaint about abdominal pain for many years and dealt with this at some length. They also recorded a history of having vomited blood prior to the operation in 1984 and there is a note “symptoms now = those pre-op”. This was consistent with the other histories taken.

No evidence was called from Dr Kellow, but one can only assume that the history to which Professor Piper was referring was one of symptoms before the operation being the same as those after the operation. The difficulty with that is that that was not the history to which Mr Bourke was prepared to adhere in his evidence.

At Red Appeal Book p.43 his Honour referred to Mr Bourke’s commencing to receive sickness benefits from the Department of Social Security, but he made no reference to the evidence of the application for that, which was inconsistent with Mr Bourke’s case.

His Honour said that he distilled from Professor Piper’s evidence that the frequent references to the post-fundoplication syndrome of gas bloat were well recognised as a complication of the fundoplication procedure. It seems to me, with respect to his Honour, that whether that be so must depend upon the history and, as I have said, the only evidence of any history that Professor Piper had was in the notes of the Royal North Shore Hospital dated 1 June 1987 and the other observations in his report, which I have recorded. They indicated that the position was the same pre-operatively as post-operatively and that there was a period after the operation when Mr Bourke “responded well”. If this is the history upon which Professor Piper relied then it did not accord with Mr Bourke’s oral evidence. Further, the inability to cross-examine Professor Piper meant that it was not possible to explore with him the history given by Mr Bourke in evidence and the various histories he had given to other doctors. It is also clear from the evidence that there was a very real issue as to when the post-operative symptoms manifested themselves, in the sense that Professor Piper noted that initially Mr Bourke responded well. In these circumstances, I am not satisfied that the untested evidence of Professor Piper went any way to overcoming the evidentiary problems in Mr Bourke’s case. The Evidence Of Dr Bambach

His Honour noted the operation performed by Dr Bambach on 4 February 1988. Dr Bambach wrote to Dr Fleming on 17 March 1998 and 2 June 1998 and to the solicitors for Mr Bourke on 18 August 1997. In the first letter he said:- “It was decided that his major problem was delayed gastric emptying and as he has had a Nissen fundoplication for his reflux, the procedure of choice in this situation is a gastric antrectomy and joining things back together again using a Roux-en-Y loop of jejunum. This has been shown in major surgical centres to provide the best possible long-term result in this situation.” Dr Bambach said that the post-operative course had been satisfactory, although Mr Bourke was still suffering from some upper gastro-intestinal symptoms. He considered his acid secretion should be fairly minimal. In his second report, he wrote:- “Stephen saw me for follow-up to-day four months after a gastric antrectomy and reconstruction using a Roux loop. He had a wide variety of symptoms to report to me to-day, a lot of which were totally unconnected with his abdomen or gastric surgery. As a result of all these various symptoms he is finding it impossible to do a great deal and certainly return to his previous occupation as a plasterer which obviously involves a good deal of strenuous activity. I didn’t think that there was anything specific in what he told me that I could help with any form of medication and I reassured him as best I can that in time his abdominal symptoms should settle.”

In the letter of 18 August 1997 Dr Bambach referred to Mr Bourke’s being referred to him by Dr Fleming because of the increasing size of a central abdominal incisional hernia.

In his oral evidence Dr Bambach outlined his specialties and he was asked a number of questions about the vagotomy. At Black Appeal Book p.113 he was asked about a note he appears to have made relating to “gas bloat”, which he said was something:- “.. which not infrequently does occur following fundoplication, and it will frequently improve with time. Q. When it does occur does it occur over a range of seriousness? A. Yes, some people get no significant gas bloat, others will get quite significant gas bloat, so it is very variable. Q. Is it ever known to be disabling? A. It is disabling in a very small percentage of cases.” He said the percentage was probably less than five.

At Black Appeal Book p.114 Dr Bambach agreed that fundoplication can alter gastric motility.

Dr Bambach was asked whether he would operate on certain given hypotheses with which he was not happy to deal, but he did say that his normal practice, before resorting to surgery, would be to continue with a trial of maximum medical therapy for a period of about three months.

In cross-examination Dr Bambach agreed that the chronology of development of symptoms was very important and the history he had received from Mr Bourke was that he had some symptoms of reflux prior to the operation by Dr MacNeil and that very soon after it he had developed symptoms of a different nature, including bloating, nausea and vomiting. He could not remember whether those post-operative symptoms were said to have developed “almost immediately after the surgery”, although he did agree that he was told that the symptoms had developed “very soon after his operation”. This was consistent with Mr Bourke’s history in evidence.

Dr Bambach said that his main diagnosis was gastric emptying problems, which could occur through a number of different causes, the chronology of development of symptoms being important in seeking to ascertain the likely cause. He continued that gastric emptying could be caused by a gastric motility disorder, which very frequently could be part of a generalised motility problem involving the gastro-intestinal tract.

He agreed that literature showed that 40 to 55 per cent or so of patients with gastro-oesophageal reflux also have a motility disorder and that symptoms such as bloating and cramping pain of the abdomen could well reflect such a disorder. Thus, if the histories given by Drs MacNeil, Fleming and Childs are accurate, they were consistent with gastric motility from which Mr Bourke was suffering pre- and post-operatively. He continued, Black Appeal Book pp.118-119:- “Q. .. if a patient presents with symptoms as burning or abdominal pain which is related to posture or doing certain things at work, that would be consistent with reflux pain, just looking at those symptoms? A. Retro-sternal burning, yes. Q. If a patient has symptoms such as bloating and cramping abdominal pain, those sort of symptoms could be related to mobility (sic) disorder? A. That is correct. … Q. It is certainly possible for a patient to have a cluster of symptoms including bloating, cramping abdominal pain, burning pain which could well reflect a mobility (sic) disorder which also is associated with a reflux problem? A. Well, you could have the two problems occurring at that time, yes.”

Dr Bambach said that the symptom of bloating is one, which commonly occurs after a Nissen fundoplication, but he did not recall if he had been told that prior to Dr MacNeil’s operation, Mr Bourke had complained not only of epigastric pain, but also of being regularly bloated and of feeling nauseated and belching frequently. He continued:- “Q. If you had been told that prior to the surgery of Dr MacNeil, the plaintiff had had not only epigastric pain, but also symptoms of feeling regularly bloated, pains going through to the back, nausea, belching frequently, but also an occasional loss of bowel control, would you have felt that prior to Dr MacNeil’s operation he was showing symptoms consistent with a mobility (sic) problem which was not only causing reflux but other problems too? A. Yes.” Thus his Honour was presented with another possible cause of the problems, viz the existing gastric motility problem, which was consistent with the histories given by Mr Bourke.

The cross-examination accepted that the operation performed by Dr Bambach would have cured any gastric emptying problems, but that if the symptoms persisted after that operation there may well have been other problems occurring in the gastro-intestinal tract. He said that was quite likely.

Dr Bambach was asked to assume that Mr Bourke said he did not have any relief from Dr Bambach’s operation, and he agreed that if that was so it would suggest that so far as his symptoms were concerned they reflected something other than a mere gastric emptying problem and, Black Appeal Book p.123:- “Q. I would like you to assume also that post-operatively Mr Bourke did not develop severe bloating until several months after Dr MacNeil’s operation. Now, that is something different to what you were told before, is that not the case? A. Yes. I think I understood that had occurred relatively soon after his surgery. Q. If it did not occur until several months after the surgery, that would tend to indicate that there must be some other explanation for the bloating, other than a vagotomy? A. Well, it may be. Q. Well, it is inconsistent with the usual chronology of symptoms for problems caused by vagotomy, is it not? A. Yes. They tend to occur earlier than, say, several months afterwards, yes. Q. If you also take on board that Mr Bourke suffered post-operatively from constipation and he describes this as going several days between, several days passing between going to the toilet and then when he went to the toilet he was often loose. Now, that is not the typical sort of picture that you get from post-operative problems with vagotomies, is it? A. Well, the general gut problems following vagotomy are very variable and they include both episodic diarrhoea, but also constipation. Q. If you assume that pre-operatively Mr Bourke suffered from symptoms including being regularly bloated, exacerbations of epigastric pain and burning pain, a feeling of being nauseated, a feeling of belching; now, if he had those symptoms pre-operatively you have already indicated that would be consistent with a mobility (sic) problem which could also have been associated with reflux, do you agree with that? A. Yes. Q. Now, if you also assume that post-operatively it took several months for Mr Bourke to complain of bloating and also assume the following: assume that on 10 January 1985, which is around a month after the operation, he indicated that he was in no discomfort and that he was feeling pleased with the operation and then further assume that in March 1985, in other words about three months after the operation, he remained very well, and that he told Dr MacNeil that whereas previously forms of exertion which were associated with severe discomfort were no longer the cause of any trouble whatsoever; and then further assume that he got back to his work in the same way as he had been doing beforehand - just assume that he got back to work, but then it was not until at least around June or even later that he started developing the symptoms of bloating, wind and cramping abdominal pains; can you take all of that on board? A. Yes. Q. Is that not consistent with Mr Bourke suffering from a mobility (sic) problem of some nature pre-operatively causing reflux and then the reflux being controlled at least for some time and then the pre-existing mobility problem re-emerging? A. Yes, it is consistent with that . (My emphasis.) HIS HONOUR: Q. Is it not consistent with there being an inadvertent vagotomy? A. I think it is still possible that he may have had one, but the trouble with the mobility (sic) disorders and mobility (sic) symptoms is that they are very variable and they can not have symptoms for a long period of time.” As the issue of the vagotomy was not pursued this evidence gave strength to the suggestion that there was a pre-existing motility problem, depending on the history which was accepted, which re-emerged.

At Black Appeal Book p.223 Dr Bambach said that bloating is a very common specific symptom and that disturbance in bowel function in general can present as bloating, so it is an assumption that could be consistent with a generalised motility problem of the gastro-intestinal tract, which occurs with irritable bowel syndrome.

Dr Bambach acknowledged that irritable bowel syndrome exists and is thought to be a generalised disorder of the motility of the gastro-intestinal tract, and he said that the fundoplication operation will quite frequently cause a patient to complain of the sensation of bloating in the post-operative period. He said that was quite common and can continue to a variable degree for years. The questioning continued in relation to bloating to show that there had not been a vagotomy.

At Black Appeal Book pp.229-230 Dr Bambach gave the following evidence:- “Q. You have probably been asked this, doctor, but having regard to the assumption that was put to you, post-operative of a period when he reported to the operating surgeon that he felt well, or words to that effect, does that give you any guide as to whether he had or had not a truncal vagotomy? A. That is an interesting point in surgery, because it is well recognised that when patients come back to see their surgeon after having had what is a fairly major operation they will not infrequently report that they are doing well, that they don’t have symptoms, but everything is fine, and then they will go and see someone else not so long after, a physician or their local doctor, and say something which is quite different. It is a complex issue. I do not think we can place enormous store on what patients tell the surgeon immediately after the operation. Q. Or indeed what the surgeon records, I suppose? A. Yes. But having said that, my interpretation of this man’s course, both before and after surgery, is that after surgery is that he had a motility disorder both before and after the operation . Q. Yes. A. But the question remains I was asked in that consultation what could have happened that may have attributed to a worsening of his symptoms with particular reference to the fundoplication and because the vagus nerves are in .. . I had to respond in that way in the consultation.” (My emphasis.) Dr Bambach could not have made clearer the problem arising from the motility disorder.

In the course of being asked about the vagotomy Dr Bambach said, Black Appeal Book p.232:- “Q. And now you can assume that prior to Dr MacNeil’s operation he had complained of regular bloating, regular nausea, epigastric pain, occasional embarrassing loss of bowel control, and that was the case pre-operatively and taking on board the continuation of the symptoms that you had seen before February 1988 would you not agree with me that the continuing symptoms are relating to some sort of motility problem that he had before his operation by Dr MacNeil? A. Yes.” His Honour did not deal with any of this evidence, notwithstanding that it provided an explanation for the post-operative condition consistently with the histories Mr Bourke had given.

Dr Bambach said that it was well recognised that fundoplication, if performed in the presence of an underlying motility disorder, will not infrequently make that disorder worse. He continued:- “Q. Now, you are not suggesting that the plaintiff, a patient such as Dr MacNeil’s patient Mr Bourke, who had had you can assume some fifteen years of reflux problems and who had on the biopsy the presence of Barrett’s oesophagus, did not need treatment of the reflux problem? A. He definitely needed treatment for reflux.”

Dr Bambach said that he was aware that a gastroscopy had been carried out and Barrett’s oesophagus found, and he agreed it was certainly associated with an increased risk of oesophageal cancer. After some debate about the relevance of Barrett’s oesophagus, Dr Bambach agreed, Black Appeal Book p.238, that it was reasonably open to a surgeon in 1984 to take the view that if there was Barrett’s oesophagus the patient was in a greatly increased risk of cancer and that therefore the reflux had to be treated aggressively, and that it was reasonably open to a surgeon to believe that the treatment had to be either surgical or lifelong medical treatment.

In re-examination Dr Bambach was asked to assume that there was pre-operative bloating, which was relatively insignificant in comparison with the problems post-operatively. He said assuming the symptoms were a lot worse after the operation, then he would assume the fundoplication had done what it is known it can do to people with motility problems and that is to exacerbate the motility problem and the bloating. He also said, Black Appeal Book p.245, that his view was that with the symptoms put to him by counsel for Dr MacNeil as pre-existing the operation, there was always a danger that the fundoplication “was exacerbating an underlying motility problem”, and if there was a great exacerbation after the operation he would attribute that to the fundoplication. He said the bloating would not be cured by the antectromy. It is, of course, critical to bear in mind that no such case of negligence was sought to be made by Mr Bourke. In the end he relied on the failure to warn. He did not rely on negligence in failing to detect that the fundoplication operation would have an effect on the existing motility problem.

Apart from the passing reference to Dr Bambach’s having operated on 4 February 1988, his Honour made no reference to his evidence, save that at Red Appeal Book p.46 he said:- “The issue of causation depends to a large extent on the acceptance as to when the systems of ‘gas bloat’ first manifested themselves. All the experts seem to agree that it can be a complication following Nissen fundoplication surgery. The evidence is that generally, the symptom disappears over a period of time. However, in a small percentage of cases, it can persist. On the one hand, we have the statements recorded in the reports of Dr MacNeil, Dr Fleming and to some extent, Dr Childs, that the plaintiff was greatly relieved following the operation. However, on the other hand, we have the evidence of the plaintiff supported by his wife and lay witnesses, Mr Murphy, Mr Milward and Mr Burgess, to the effect that the plaintiff suffered serious and incapacitating bloating from the immediate post-operative period onwards.”

His Honour does not evaluate this evidence and, as I have said, he makes no reference to the evidence of Dr Bambach, nor, in this context, to that of Professor Piper, the insurance claim or the claim for the invalid pension. He continued, Red Appeal Book p.47:- “I think the plaintiff, in his unsophisticated way, may have reported improvement or indeed absence of symptoms to the doctors when he saw them. However, I think the true position is, that, he did suffer these symptoms from the early post-operative period, but tended to dismiss them originally, as he thought that they were part of the normal post-operative sensations which he had been told to expect. I believe they, however, started to become a problem in about June of 1985, and became such that he sought treatment. I conclude therefore, that the symptoms of which the plaintiff now complains, are causally related to the Nissen fundoplication operation which was carried out on him on 10 October 1984.” His Honour made no reference to the pre-operative conditions as recorded in the histories. In my respectful opinion, that was essential if he was to find the causal relationship to which he referred. Nor did he refer to the gastric motility problems, which would give a similar result.

As I understand this paragraph his Honour accepted the evidence of Mr Bourke, as related in the witness box and as supported by his wife and the other lay witnesses, in preference to the evidence of the histories given by Mr Bourke to the various doctors. In doing so he did not reject the evidence of the histories provided, nor explain how the contemporaneous notes could be explained consistently with the oral evidence. He proceeded on the basis that whilst he suffered from the symptoms in the early post-operative period, he dismissed them “originally”, but when they became “a problem” in about June 1985, he sought treatment. The extraordinary part about an acceptance of this chronology is that if the matters became a “problem” in June 1985, Mr Bourke did not seek treatment for a further period of five months. Thus he had been suffering from shortly after operation in January and, notwithstanding that a “problem” arose in his mind in June 1985 he still delayed for five months seeking treatment. When he did so, he stated that the problems from which he was suffering were the same as those from which he had suffered pre-operatively. His Honour did not give any explanation as to how he was able to accommodate these matters into his reasoning. In my respectful opinion, they are totally at odds with the conclusions to which his Honour came, as are the histories for the insurance claim, the Social Securities claim and at Royal North Shore Hospital.

His Honour had to decide whether he accepted Mr Bourke’s evidence as appearing in all those histories, or whether he accepted his oral evidence. If, as he found, Mr Bourke was an honest witness, one would have to decide why there were the discrepancies. This was especially so as the histories were barely challenged. They were not only consistent, but the matters stated by Mr Bourke were explicable on the basis of the motility problem. The histories therefore pointed to a position in total conflict with Mr Bourke’s case, but in circumstances where he had provided them and no effective challenge was made to the accuracy of the recording. The Evidence Of Professor de Carle

Dr MacNeil called Associate Professor de Carle. On 29 April 1996 he wrote a report in which he stated that he examined Mr Bourke on 16 May 1991 and 16 April 1996. He obtained a reasonably consistent history on both occasions, Mr Bourke advising him in 1991 that his symptoms following surgery were fairly similar to those prior to the operation and, by April 1996, they had changed very little. He continued:- “Mr Bourke describes burning epigastric pain associated with upper abdominal distension, bloating and regurgitation. These symptoms had been present for at least two years prior to the operation and had been treated with antacids and Cimetidine. Mr Bourke told me that he noted gaseous distension almost immediately after the operation but Dr Fleming’s notes record that there was considerable improvement for a period of several months.” (My emphasis.) This further strengthened the evidence of a pre-operative condition.

He referred to the history of bowel problems and said there was good evidence that Mr Bourke had severe gastro-oesophageal reflux disease, which did not respond to standard drug therapy and required surgical treatment. Barrett’s oesophagus was documented both endoscopically and histologically.

Professor de Carle wrote that the symptoms post-operatively were fairly similar to those suffered pre-operatively:- “.. although the retro-sternal burning has been helped by the operation. Bloating and abdominal distension have become more prominent and the alteration in bowel habit is well marked.” After considering vagotomy, he wrote:- “It is my opinion that Mr Bourke had a diffuse, non-specific abnormality of gastrointestinal motility characterised pre-operatively by gastro-oesophageal reflux disease and symptoms of delayed gastric emptying. Post-operatively the reflux problem has been controlled but the other symptoms of deranged gastric motility including bloating, abdominal pain and fluctuation in bowel habit have all persisted and become more troublesome.”

In an earlier letter of 23 May 1991, Blue Appeal Book p.697, Professor de Carle said that gastric bloat syndrome is a well recognised complication of fundoplication.

On the same day he wrote another letter in which he obtained a history from Mr Bourke describing cramping and burning epigastric pain which could come on at any time but were worse when the patient was bending and stooping. It most frequently occurred immediately after the patient had eaten and was associated with a bitter taste in his mouth, which he attributed to bile. Symptoms first began in 1976, and Mr Bourke gave the following history:- “He now tells me that he noted gaseous distension and increased flatus production almost immediately after the operation. Three months after the operation he noted that his abdominal symptoms were getting worse. He felt this may have been the effect of the operation so he reduced activities but continued to get pain. He told me that the symptoms were basically similar to those prior to the operation but he indicated that the pain was periumbilical in the post-operative period where he had indicated epigastric or lower retro-sternal pain pre-operatively. Mr Bourke felt that the pain was made worse by exercise so he decreased his work load.” (My emphasis.)

Professor de Carle continued:- “The patient’s present symptoms are difficult to explain. The initial symptoms were very suggestive of gastro-oesophageal reflux with oesophagitis. There was no evidence of gastric or duodenal ulceration at any time and no evidence of gastritis. The upper abdominal discomfort, gaseous distension and mild intermittent dysphagia frequently occur following fundoplication and usually resolve spontaneously.”

He then said:- “In summary the history, physical examination and investigations which have been performed suggest that the patient suffered from longstanding gastro-oesophageal reflux, post-fundoplication gas-bloat syndrome and now has chronic, unexplained abdominal pain.” (My emphasis.)

At Black Appeal Book p.253, Professor de Carle was asked to assume that an opinion had been expressed in the case that it was known at some time that reflux surgery could make motility problems or symptoms worse. He was asked to comment on that and he replied:- “It was believed that if you did a fundoplication, if you wrapped the stomach around the lower end of the oesophagus and if the oesophagus itself was not contracting properly there may be a risk of difficulty in swallowing after the operation. It was considered that if you had a severe obstruction of motility in the oesophagus, if the oesophagus was not contracting at all then you should avoid fundoplication but in the gastric emptying, gastric motility it was not considered that any abnormality of the gastro motility would be affected, although there was some evidence that delayed gastric emptying would be improved by a fundoplication.”

Professor de Carle said that between 40 and 60 per cent of patients with reflux disease have evidenced a delayed gastric emptying of solids.

He was asked about the dangers in relation to Barrett’s oesophagus, which he described, and said that in 1984 it was thought that abdomo-carcinoma was at least 10 to 50 times more common with Barrett’s oesophagus than in the normal population. He said that the view in 1984 was that Barrett’s oesophagus should be treated surgically, and that medical management was not adequate.

At Black Appeal Book p.256 Professor de Carle said that bloat symptoms come on almost immediately after the fundoplication operation because it prevents venting of the stomach straight away, that the usual course is that the patient and the stomach accommodate to the problem and the symptoms slowly resolve, but that some patients have gas bloat which persists for years, although the majority develop it and it resolves slowly over a period of months.

He expressed the opinion that if the patient’s symptoms were bloating post-operatively and several months after the operation they worsened significantly and continued to worsen, they were not related to the operation.

In cross-examination Professor de Carle agreed that he had no history of the use of the word “bloating”, although he equated “cramping” with “bloating”. He said he inferred that when Mr Bourke told him he had cramping, he had bloating which caused it. He said that cramping and bloating usually go together. However, at Black Appeal Book p.262, it was pointed out that Professor de Carle had a record of bloating pre-operatively, which is consistent with the other histories to which I have referred.

At Black Appeal Book p.266 Professor de Carle agreed that gas bloat can continue in a small number of patients indefinitely and that whilst it is extremely uncommon for it to be disabling:- “It is likely that people with disabling gas bloat syndrome have been rarely described, yes.”

He also agreed that the symptoms of bloating Mr Bourke had two or three weeks after the operation may have been related to gas bloat, and he said that if they continued he thought the cause would be some pre-existing abnormality of intestinal motility.

At Black Appeal Book p.275 Mr Toomey took up with Professor de Carle the evidence given by Dr Bambach. Professor de Carle said:- “Q. Do you think that cramping symptoms would refer to some motility problems which were not directly associated with reflux? A. Correct, yes. Q. Would you agree that it is recognised that fundoplication can increase underlying motility problems? A. I would agree that it can increase underlying motility problems in the oesophagus. I would suggest if anything it improves underlying motility problems in the stomach .” (My emphasis.) He gave his reasons for that conclusion.

Professor de Carle returned to his thesis that if symptoms slowly got worse over a period of months or years he would not attribute them to the operation and, Black Appeal Book p.277, said that in general the symptoms improve and do not deteriorate. He agreed that there had been reports of “very occasional patients with disabling symptoms, but in general patients improve”, and:- “Q. So it is known that disabling symptoms can arise from fundoplication? A. Yes. But it is not known what the mechanism of those disabling symptoms is.”

At Black Appeal Book p.287 Professor De Carle was referred to that portion of his report which stated that fundoplication may alter the rate of gastric emptying by changing the shape of the gastric fundus and limiting the ability of it to relax, and that small intestinal gaseous distension and increased flatulence may be as a result of the inability to belch because of the increase of the one way valve, which is the essence of the fundoplication. He said the entrapment of the gases could continue as long as the valve remained in place and whilst most people get better some do not.

In re-examination Professor de Carle said that motility disorders can get worse as well as becoming complicated.

Mr Bourke denied, Black Appeal Book p.291, that he told Professor de Carle he had bloating two years before the operation or that his condition had forced him to stop work before then.

In relation to the evidence of Professor de Carle, his Honour referred to his opinion that fundoplication may alter the rate of gastric emptying and to his opinion that Mr Bourke had post-operatively a situation where the reflux problem had been controlled, but the other symptoms of deranged gastric motility, including bloating, abdominal pain and fluctuation in bowel habits, had all persisted and become more troublesome. This is consistent with the evidence of Dr Bambach. The history given to Professor de Carle was consistent with other histories provided by Mr Bourke. But, though Professor de Carle (unlike Dr Fleming and Dr Childs) was vigorously cross-examined about it, his Honour did not refer to it, beyond stating:- “As related to him, the plaintiff’s symptoms post-operatively, were fairly similar to those he suffered pre-operatively.” The Evidence Of Dr MacNeil

Dr MacNeil described the surgery he had performed; the reasons for the fundoplication operation; the symptoms of which Mr Bourke complained before the operation including, Black Appeal Book p.312, that after a day of stooping he could not work satisfactorily “now” because of the pain.

At Black Appeal Book p.314 he said that Dr Childs had told him that Mr Bourke was suffering from a Grade 3 inflammation of the lower oesophagus and that the histology result showed a condition known as Barrett’s oesophagus.

Dr MacNeil was taken through what he would have said to Mr Bourke by reference to some of his notes. Dr MacNeil said that Barrett’s oesophagus was a risk to the patient only if there was no treatment either by medical means or surgery, but that if there was such treatment it would resolve and, in 1984, his personal opinion was that provided the surgery was successful it would have every chance of abolishing fairly quickly the Barrett’s oesophagus.

Dr MacNeil gave a number of reasons why he thought surgery was warranted, including that there was a very, very small chance of success of continued medical management. He was asked, Black Appeal Book p.319, about the shortcomings and risks attached to the fundoplication operation and he said that about 50 per cent suffer disadvantages, the commonest symptom being a feeling of distension and not being able to burp because the fundoplication is too tight:- “In other words, the mechanical effect that prevents the reflux from having its further action on the lower oesophagus does prevent them from burping, so they may feel tired and distended. I don’t believe I’d use the word - would have used the word ‘bloated’, but they do feel distended and that is for about 45 per cent of the remaining 50 per cent. Now, I would also explain that the pattern of these symptoms is that if they are going to develop at all they will develop early and most patients, or something between 30 and 50 per cent, will have mild degrees of it in the first two days after operation. It is important that the patient knows this so that they don’t think that something has gone wrong. If they’ve been reassured previously that this may happen, then they are further reassured, and also is the information that various manoeuvres, including if necessary stretching the oesophagus in the first few days of hospital in the extreme, given an anti-spasmodic or perhaps in mild cases following it for a few days and finding it settles down. But the pattern is that it starts severely and in most patients it will either disappear completely or to be only to a minor effect.”

At Black Appeal Book p.323 Dr MacNeil said that there was a risk of distension, which would appear very early and be severe and would usually respond to various methods of treatment, and settle down very steadily and disappear in the majority of patients, who may have noticed it. He added that there were some patients who were left with a significant degree of inconvenience through being unable to burp when they wished. He said he had not seen patients, prior to December 1984, where the distension had persisted and he had not seen post-fundoplication syndrome “to a totally disabling extent”.

He continued:- “Q. Prior to December 1984, had you been personally aware of motility problems, being gastro-intestinal motility problems, having been made worse by a fundoplication operation? A. Not specifically or commonly, no. Q. And what about from apart from your own personal observation with patients or patients who had something to do with, what about literature up to December 1984? A. It is true to say that the knowledge and study of these motility disorders of oesophagus, stomach, small intestine and large intestine are very much better investigated and there is much more knowledge to-day than there was then. Q. So what is your answer in relation to December 1984? A. That I did not have any great information or knowledge that such motility disorders would be made worse by a fundoplication operation.”

Dr MacNeil said that had Mr Bourke complained to him about symptoms, even mild ones, after the operation he would have noted it, but no such complaints were noted and therefore, consistently with his practice, none was made.

Mr Bourke was referred back to Dr MacNeil, who saw him on 3 November 1986. He complained of pain in his upper abdomen and bile entering his throat since June 1986 and pain on stooping since September 1986. He added that late in the interview Mr Bourke told him that he had suffered from wind and felt bloated and he had lost between one and one and a half stone because he was not eating properly.

Mr Bourke told Dr MacNeil that he was only able to work “half time”; that he had some retro-sternal pain, which came on after the pain had started high in his abdomen and midline; and Dr MacNeil found that he was tender in the upper abdomen and, notwithstanding that he formed the view that Mr Bourke in an honest way was trying to communicate his problem, Dr MacNeil was having trouble sorting it all out. He thought there were three possibilities, namely a recurrence of his reflux; a post-fundoplication bloat; or hyper acidity as suggested by Dr Childs.

Dr MacNeil said he had difficulty obtaining a very good history from Mr Bourke, and:- “However, after a lot of discussion I would summarise as follows: (1) He seemed to get good relief from his reflux symptoms following the operation in December 1984 and this continued until September 1985 . Since then, he has had increased discomfort, quite disabling, missed about half his time at work; (2) A great deal of his discomfort is epigastric, that is in the upper midline and is accompanied by a bloated feeling which I concluded may be a late effect of Nissen fundoplication.” (My emphasis.)

Dr MacNeil made a note that it was necessary to sort out whether Mr Bourke was suffering from reflux, post-Nissen fundoplication bloat, or hyper acidity.

At Black Appeal Book p.333 Dr MacNeil said that he was aware, prior to the operation in December 1984, of the presence of Barrett’s disease in the oesophagus.

Mr Toomey commenced to cross-examine Dr MacNeil at Black Appeal Book p.336. He said that he had performed between thirty and forty Nissen fundoplications by November 1984 and that whilst he had not heard of total disablement from that procedure he had heard of symptoms to a degree that interfered with the patient’s lifestyle, but not his ability to earn a living. That knowledge was based on reading text books and journals and attending lectures at which various techniques were discussed in relation to possible complications and their avoidance.

Dr MacNeil maintained he had never seen total disablement.

At Black Appeal Book p.343 Dr MacNeil said that he was not aware of any patient being prevented from carrying out their normal work, including manual work. But he then agreed that the natural reading of his answer in chief was that he was aware that post-fundoplication syndrome could cause partial but not total disablement. He added that a patient would have symptoms, which he or she may notice during work, but they would not prevent the work being carried out, and:- “Not to the extent that they would be incapacitated and they would have to give up work.”

Dr MacNeil explained that he had undertaken scientific investigation of the possible effects of post-fundoplication syndrome and:- “Q. Because the problem was well known, post-fundoplication was a well recognised complication of Nissen fundoplication, wasn’t it? A. In its minor and greater degrees, yes. Q. In its minor and greater? A. Yeah. Q. Of course. But you must warn a patient, must you not, of the possibility of greater degrees? A. Of all ranges I believe. Q. But if the greater degrees included the possibility of disablement for work, either total or partial, it would be absolutely unconscionable if a doctor were not to warn a working man of such a possibility, would it not? OBJECTION. ALLOWED. TOOMEY: Q. It would be unconscionable if a man might be partially disabled for work, if a surgeon did not warn him of that possibility? A. The consequences of any major, surgical operation can be either death or maiming for life, or other things. I do remember with this patient I did say to him, and he asked. He did ask about general risks and I said with an operation there is a very slight risk that you might die from something. Because that does happen under anaesthesia. Or you might be maimed from some other complication. I didn’t say, I said die or suffer a complication. But I said your chances of being killed or maimed by driving from Sydney to Wagga Wagga are certainly greater than the chances of this happening because maiming, in terms of making the client unable to work, can happen from perforation of oesophagus perforation, a bowel chronic wound pain. And there is a long list that I could warn him of. So that is, well you said unconscionable. Q. Not to warn him of risks: you see this man was 34; he had young children; he was a man who was self-employed and who earned his living manually; you knew all those things, didn’t you? A. Yes. Q. You would have had no doubt inferred that he probably had financial obligations which he had to work, to meet? A. Yes. Q. You would no doubt have inferred that if he was unable to work, either partially or wholly, that that would be disastrous for him? A. Yes.”

It was put to Dr MacNeil that he had not discussed with Mr Bourke any possibility that the operation might have an effect on his ability to work, with which he agreed, although he said he had referred to the symptoms experienced by some patients after fundoplication, which were a less than perfect result.

Dr MacNeil was taken to his answers to interrogatories and to a specific question as to whether he had advised Mr Bourke of the risk of post-fundoplication syndrome. In answering that interrogatory he said “not by that name” but that Mr Bourke was told “that some indigestion type symptoms were experienced by 45 per cent of patients post-operatively”. He agreed that answer did not describe the gas bloat syndrome.

At Black Appeal Book p.358, Dr MacNeil agreed that there were known cases, although rare, of gas bloat syndrome disabling patients. He said that was the position as known to him in 1984 and he did not tell Mr Bourke as it was a very rare complication “so I didn’t mention that particular rare complication, no”. He agreed that gas bloat syndrome is a complication of a fundoplication, which is not very rare if one includes all the degrees and, Black Appeal Book p.360:- “Q. If you told him about the possibility of distension from the gas bloat syndrome, why did you not tell him that there was a possibility, although a small possibility, of that complication of that being disabled? A. Because there is a range of complications with any major operation which are very rare, and they are not mentioned by name, and I don’t believe that you could include every single one of them because there are some extremely unusual and rare things that can happen after an operation. Q. But the gas bloat syndrome is not rare, in terms of complications. It is very common, isn’t it? A. But persisting gas bloats of sufficient degree to totally disable the patient is rare, I believe, and I would have said so then.”

Dr MacNeil said that he was present when Dr Bambach gave some of his evidence, and he was referred to some of it, including the evidence that less than 5 per cent would be disabled.

At Black Appeal Book p.363, Dr MacNeil agreed that he knew in November 1986, when Mr Bourke returned to see him, that he was partially disabled from work, and he believed that one possibility was post-fundoplication bloat, and he agreed that that condition could be sufficiently serious to at least partially disable a man from work.

At Black Appeal Book p.371, Dr MacNeil agreed that straining and heavy work would increase the pain in the abdomen; that the work of a concreter is certainly heavy work; and that one might expect if Mr Bourke had gas bloat syndrome that it could affect his ability to work, and:- “Q. Why did you not tell him that gas bloat syndrome was common and that if he got it it might affect his ability to work? A. But affecting ability to work does not mean to me total disablement and complete inability to work. Q. But you see if it affected his ability to work by a third, do you not think that important to a man who made his living by doing heavy labour and who had no other skills? A. Yes, if his work output was reduced.”

Dr MacNeil relied on the existence both before and after the operation of the same symptoms. The case was that the symptoms were consistent with a condition of gastric motility. In the light of the evidence that the fundoplication had been carried out in a totally correct manner and that there was another cause for the problems Mr Bourke was suffering, it seems to me that it was incumbent upon his Honour to determine, if he was to find for Mr Bourke, that the condition of gastric motility had not existed prior to the operation or, indeed, after it or, if it did exist, that it did not give rise to the problems from which Mr Bourke was suffering. There was some evidence from Dr Bambach that the fundoplication could have operated upon the existing gastric motility condition to cause the problems from which Mr Bourke was suffering, but his Honour made no finding that this occurred and this was not the negligence alleged. The Evidence Of Dr Blaxland

There was the further problem to which his Honour did not refer arising from the evidence of Dr Blaxland, who was called in Mr Bourke’s case, in his report of 29 May 1996. In that report Dr Blaxland said that vagotomy was not part of a Nissen fundoplication and that:- “The complications mentioned here of dysfunction of the digestive system, chronic abdominal pain and bloating, gastro-paresthesis and gas bloat syndrome would in my opinion only be expected to occur following a trunkal (sic) vagotomy and not from an operation restricted to fundoplication alone.”

He concluded:- “From the papers I have seen I think it is likely that a vagotomy procedure, probably a trunkal (sic) vagotomy was performed at the time of the fundoplication operation and this would be consistent with the operation taking three hours if that was the case as I would not expect a straightforward fundoplication operation alone to take that long.”

Dr Blaxland’s evidence in chief was concerned with a vagotomy. At Black Appeal Book p.131 he was asked to assume that Mr Bourke complained, after the first operation, of gross distension of his stomach and he was asked whether he would attribute that to the operation. He said it would be consistent with a truncal vagotomy performed without a drainage operation to the stomach, and that if a truncal vagotomy had occurred without such drainage, the stomach could well distend quite grossly, which would tend to make the abdomen quite prominent. Such gross distension would cause pain from increased tension in the stomach wall. He was asked to assume that Mr Bourke also continued to suffer from some reflux after the fundoplication, which had continued. He explained that by saying:- “To me the explanation would be that the fundoplication where the upper part of the stomach has wrapped around the lower part of the oesophagus was not as efficient as would be hoped and that the wrap as it is called, may have been a little weak. I don’t think it would affect the distension of the stomach in any way though.”

In cross-examination, Dr Blaxland said that the fundoplication operation was not likely to have complications apart from a little bit of difficulty in swallowing for a while, and he was then taken to paragraph 3 of his report in which he stated:- “3. Back in 1984 I think a patient would need to understand that this was a major operation but that it should carry very little serious risk for as mentioned above the gastrointestinal tract should not be opened. There could be other possible post-operative side effects such as some difficulty in swallowing in this area of the lower oesophagus if the wrap was tight but that this would usually settle. Also one has seen such a fundoplication wrap slip down a little way along the stomach if it is not fixed in place, but this becomes very technical and would be unexpected. I would not expect advice regarding the problems mentioned under 2 above to be expected or included in normal pre-operative advice.”

Paragraph 2 stated:- “2. The complications mentioned here of dysfunction of the digestive system, chronic abdominal pain and bloating, gastro-paresthesis and gas bloat syndrome would in my opinion only be expected to occur following a trunkal (sic) vagotomy and not from an operation restricted to fundoplication alone .” (My emphasis.)

Dr Blaxland was asked if his reason for making that statement was that the incidence of the gas bloat that he described is normally very low. He said it was and he could not remember on all the occasions that he had carried out a truncal vagotomy “any case where it was significant”. He was asked whether he would agree that the risk of gas bloat in a straightforward fundoplication can be defined as minimal, to which he replied “Yes”, and:- “Q. Also would you describe the risk of chronic abdominal pain after a normal fundoplication to be very low also? A. Yes. In an uncomplicated operation I would expect it to be very low. Q. Similarly, would you characterise that as minimal? A. Yes.”

Dr Blaxland said that he understood that Mr Bourke had reflux symptoms and oesophagatis followed by a fundoplication, and that it was after that that he complained of the symptoms of bloat and gaseous distension.

He agreed, “in general terms”, that in trying to determine whether symptoms can be attributed to a particular event it is important to know whether they occurred before as well as after the event in question, and he said that he had based his opinion in the present case on there being symptoms of reflux before and symptoms of bloat after the operation.

Dr Blaxland agreed that he assumed that there were no symptoms of bloat before the operation: Black Appeal Book p.136, and that symptoms of abdominal pain, bloating, reflux and so on are certainly not necessarily simple to sort out. He said that what he knew was that it was after the operation that Mr Bourke complained so strongly about bloat and other relevant symptoms and trouble opening his bowels and of passing a lot of wind.

Dr Blaxland agreed that intestinal motility problems and disturbances of bowel function can be associated with abdominal pain, as can diarrhoea, rather than constipation unless one was having a partial bowel obstruction. He said he thought irritable bowel syndrome was not a firm diagnosis of anything, but rather one thrown up by people as a last resort when they could not understand what was happening; that it was used by general practitioners more than specialists; that it had nothing to do with bloat; and that the term meant that someone “gets gas, gets upset, for reasons that are not always known, sometimes its due to hypersensitivities to things, sensitivity to different foods. It is a term used by some gastroenterologists, in my experience, not much by surgeons but probably more simple”.

He said that if and when irritable bowel syndrome genuinely existed it would be feasible to describe it as part of a generalised motility disorder in the bowel.

Dr Blaxland was cross-examined about bloating before and after the operation. He said that it was his understanding that the post-operative symptoms developed “pretty well immediately” after Dr MacNeil’s operation, which he would have expected. The Evidence Of Dr Yeo

Dr Yeo, a specialist general surgeon, expressed the opinion in his report of 30 April 1997 that on the evidence of Mr Bourke’s symptoms, their duration, the presence of endoscopic oesophagitis, the biopsy evidence of Barrett’s epithelium and the failure to respond to medical treatment, Dr MacNeil’s decision to perform a Nissen fundoplication was fully justified.

At Black Appeal Book p.403 Dr Yeo said he recognised there is a condition known as post-fundoplication bloat which, when it occurs, happens early after the fundoplication. He said it usually started within “around a week and it progresses for some weeks”. He acknowledged that in a few people it may last for a little longer “but it is rare, in my experience, to last for many months. In fact, in my experience it does not become a permanent problem”. He continued:- “Q. If you assume that in the case of the plaintiff there was apparently a few months after the December 1984 operation - there having been maybe some bloating after the operation and there was then an apparent deterioration a few months afterwards and then the plaintiff continued to get progressively worse; what does that say about the likelihood of the explanation being post-fundoplication bloat? A. In my opinion, it would be unlikely to be due to the fundoplication. It would suggest that something else is occurring.”

He was asked whether the “something else” could be chronic gastritis and he said that would be consistent with a pathology report from a gastroscopy on 23 September 1986 and that fundoplication does not cause chronic gastritis. At Black Appeal Book p.405 he said:- “Q. If the plaintiff’s symptoms after the operation and continuing after the operation in the way I have described were due to fundoplication, would you expect Dr Bambach’s operation to have helped the plaintiff? A. If it was due to bloat, which I would think very, very unusual at two years - but if it was due to bloat I would expect a good drainage operation, as he would do, would be effective in reducing bloat. Q. Earlier you said, I think, that you had not in your experience had cases of post-fundoplication bloat that had continued in a significant way as long as this, is that right? A. If you ask specifically about bloat, yes. There are people who have other symptoms, the main problem is recurrent reflux, would be the main ongoing problem but bloat, per se, going on indefinitely, in my experience, in my practice is most unlikely. In fact, I cannot recall someone going on with bloat for years after fundoplication with no other problem but fundoplication.”

At Black Appeal Book p.412 Dr Yeo said:- “Q. What about motility disorders of the stomach; is it not the case that they can be substantially worsened by fundoplication? A. No. It is not my understanding that gastric motility is affected by fundoplication per se .” (My emphasis.) He said he meant by that by the operation itself, and:- “A. There is no reason why a fundoplication could affect a motility disorder in the stomach, the small bowel or the large bowel. There are many of these co-exist and continue. I mean, we have patients who have fundoplication who have continuing - the most common is irritable bowel problems.” Thus, Dr Yeo supported the view that there was an ongoing motility problem. Conclusions Thus Far

It will be apparent that there was a very real issue as to Mr Bourke’s complaints and symptoms prior to the operation. In tracing the post-operative condition his Honour referred to Dr MacNeil’s two letters reporting to Dr Fleming. Neither of these made any reference to any problems from which Mr Bourke alleged he was suffering at the time he saw Dr MacNeil and of which he complained to him. It seems to me that it was essential for his Honour to determine whether he accepted Dr MacNeil’s reports as setting out the position correctly, or whether he accepted Mr Bourke’s recall of his consultations with Dr MacNeil some twelve years earlier. His Honour made no findings in relation to this conflict, save to say that he thought the true position was that Mr Bourke suffered from the symptoms from the early post-operative period, but tended to dismiss them “originally” as he thought that they were part of the normal post-operative sensations which he had been told to expect.

There are, in my opinion, difficulties with this analysis of the evidence. Dr MacNeil’s letters do not assert merely that Mr Bourke made no complaint, but that he was “very pleased with the comfort” and had “no symptoms of his previous reflux”, and remained delighted with his result “and the forms of exertion associated with his previous severe comfort (sic), no longer cause any trouble whatsoever”. “Comfort” should, obviously read “discomfort”.

It is, in my view, impossible to reconcile Mr Bourke’s complaints at trial with the evidence of the admissions to Dr MacNeil. Dr MacNeil was not cross-examined to suggest that his letters to Dr Fleming mis-stated the position or painted a deliberately false picture. Nor did Dr MacNeil have any motive for doing so. There was no suggestion of litigation at that stage and, in any event, if that suggestion was to be made, it should have been put clearly to him so that he had the opportunity of answering it. I consider that it is totally improbable that Dr MacNeil would have not continued to see Mr Bourke if he was complaining of the symptoms he now alleges, or would have acquiesced in his return to work.

There are a number of other matters which strongly militate against his Honour’s conclusion. Mr Bourke gave his evidence of seeing Dr Fleming in the supermarket and being told to return to see him if the position did not improve, but he did not do so until November 1985. In fact he saw no doctors from the time Dr MacNeil saw him in March 1985 until then, his assertion being that problems started in about June 1985.

On 4 November 1985 Mr Bourke consulted Dr Fleming, who noted a history of bloating, wind and crampy abdominal pain “i.e. the same as when first seen on 15/10/1984”. It is correct that Dr Fleming did not use the word “bloating” in his notes in relation to the examination on 15 October 1984, but his evidence was cogent that that was incorporated in what he had said and his Honour did not reject that evidence. Dr Fleming had no reason to give an inaccurate history and none was suggested to him. Further, when Mr Bourke saw Dr Childs, who reported on 7 November 1985, he apparently gave Dr Childs a history that he “felt terrific” after the operation “and remained thus until a few months ago”. Dr Childs reported in these terms. There was no suggestion that Dr Childs mistook what he was told or had any reason to fabricate it. He made a contemporaneous note, which had to be measured against Mr Bourke’s subsequent denial and obvious interest in portraying a different situation.

There was further evidence, which supported the view that Mr Bourke did not suffer immediately after the operation and that the symptoms of which he complained were the same as those from which he suffered before it.

He told Dr Fleming that he felt well until about mid-1985: Black Appeal Book p.89 line T, and Dr Fleming said that when he saw Mr Bourke on 4 November 1985 “that was when he started to get his nausea, his vomiting and discomfort and he in fact got worse …”.

On 24 June 1987, Mr Bourke made the claim on his disability insurance policy, and I have referred to the evidence in which he said that the nature of the illness was severe pain and discomfort of the stomach which first became evident in about June 1985. Whilst his Honour made reference to disability insurance, he made no reference to this evidence, which was wholly at odds with the evidence of Mr Bourke and that of his wife and friends at trial. Nor, did he refer to the history taken by Dr Sharrock, who prepared a medical report for the invalid pension application, which recorded that Mr Bourke was helped for two years after the operation and continued working until 1986 when he developed severe continual chest pain. Dr Sharrock also recorded that the operation gave him almost a complete relief of symptoms for about eighteen months to two years.

It does not seem to me that on any view of the evidence that this history can be correct. However, it was not suggested to Dr Sharrock that he had taken the wrong history. Mr Bourke made no attempt to explain what Dr Sharrock had recorded.

When Dr Childs saw Mr Bourke in October 1984 he noted complaints, inter alia, of bloating, nausea and belching and occasional loss of bowel control, and he wrote to Dr Fleming that Mr Bourke felt “regularly bloated” and “regularly nauseated” and “belches frequently”.

Dr MacNeil recorded, on 20 November 1984, that over the last six months Mr Bourke’s condition had become “a lot worse”, and that most of the discomfort was situated in the epigastrium and that on detailed questioning the factors, which aggravated the pain, were straining or lifting, lying flat at night, and long days of stooping whilst working. It was quite clear from this history that Mr Bourke was having difficulty in carrying out his work before the operation, although he did not lose any time. His Honour neither rejected nor referred to Dr MacNeil’s evidence in this regard.

Professor de Carle recorded that Mr Bourke told him that he was experiencing post-operatively symptoms “basically similar to those prior to the operation”, and he gave the history to Royal North Shore Hospital, to which I have referred, “symptoms now = those pre-op”. His Honour made no reference to this evidence, nor was doubt sought to be cast on it.

His Honour made no findings in relation to the history. He referred to the evidence of the doctors “that the plaintiff was greatly relieved following the operation”. He did not reject it. He did not refer to the disability claim or to the evidence of Dr Sharrock. On the other hand he referred to the evidence of Mrs Bourke, Mr Murphy, Mr Milward and Mr Burgess “to the effect that the plaintiff suffered serious and incapacitating bloating from the immediate post-operative period onwards”. This, if I may say so with respect, was a broad generalisation of that evidence. He said:- “I think the plaintiff, in his unsophisticated way, may have reported improvement or indeed absence of symptoms to the doctors when he saw them.” There was no evidence to support this finding. Mr Bourke did not say he gave an inaccurate history to any doctor. He simply denied giving such histories. Certainly by November 1985 no reason could be advanced to suggest why Mr Bourke, who had then decided to seek medical attention, would not give an accurate history, including that he had suffered considerably from the time of the operation.

There are difficulties, in my opinion, with his Honour’s findings. First, Mr Bourke never said that, contrary to the fact, he reported improvement or absence of symptoms to the doctors, when there was no improvement or no absence of symptoms. There is, of course, the evidence of Dr Bambach that some patients do not complain to the operating surgeon. However, this was not a situation in which there was a lack of complaint but, as I have said, a positive assertion of improvement. Further, in so far as Mr Bourke said he had the conversation with Dr Fleming at the supermarket in which he did complain, that conduct is inconsistent with his adopting an attitude of reporting improvement and absence of symptoms. On Mr Bourke’s evidence he was told to see Dr Fleming, but he did not do so until November 1985. It seems to me inconceivable that if Mr Bourke was suffering in the manner he alleged, he did not see any doctor until November 1985, even allowing for the fact that he may well have started to have problems in June 1985.

His Honour’s reason for accepting this evidence was that Mr Bourke thought the symptoms were part of the normal post-operative sensations, “which he had been told to expect”. However, when one considers his denials of what he was told at Black Appeal Book p.9 there was no suggestion that he was told of any “normal post-operative sensations” and he gave no other evidence about that, save for saying that he reported to Dr MacNeil that there was bloating shortly after the operation and that Dr MacNeil told him that that was an incident of the operation. That evidence has to be compared with the reports written by Dr MacNeil.

There are, so it seems to me, two basic difficulties confronting the case made by Mr Bourke. The first is that accepting for the moment that the evidence of Mrs Bourke and the lay witnesses should be preferred to the evidence of the history given by Mr Bourke to the doctors, the claim he made on his disability insurance and for social services, and the sheer improbability of his failing to complain to a doctor until November 1985, if, in truth, he was suffering in the way in which he said, there was an abundance of evidence that his pre-operation condition was the same as his post-operation condition and the medical evidence was that that was caused by the gastric motility problem, which was unrelated to the fundoplication syndrome.

The second basic difficulty is that his Honour recognised that for Mr Bourke to succeed on causation, it was necessary for him to establish that the symptoms of “gas bloat” manifested themselves reasonably soon after the operation. At least I think that is the way in which his Honour framed the question because of his finding that Mr Bourke suffered from the symptoms from the early post-operative period. The histories were inconsistent with this. On Mr Bourke’s case there can be no suggestion that there would be any significance in the “gas bloat” problem manifesting itself at some subsequent stage. It was submitted on behalf of Dr MacNeil that all the experts, who considered the matter, were of the view that Mr Bourke had a pre-operative gastric motility problem, which simply continued after the operation, explaining both the pre- and post-operative symptoms. Reference was made to the evidence of Professor de Carle, Dr Blaxland, Dr Yeo, Dr Bambach and Dr Fleming to support this. For his own reasons, Dr Blaxland did not associate the problems with the fundoplication operation. Evidence Of The Lay Witnesses

In relation to the evidence of Mrs Bourke, Mr Sullivan submitted that it ought to have been scrutinised with care as she was not a disinterested witness.

In chief Mrs Bourke said that between January 1971 and October 1984 Mr Bourke never complained to her about any stomach condition; throat condition; being bloated; or nausea. She was not aware he suffered from any condition to do with his stomach or respiratory, digestive tract. This seems strange in the light of the history given, even if confined to Mr Bourke’s concession about problems after over indulging in alcohol. She said she first became aware that something was wrong when he became sick in 1984, complaining that his throat was “killing him” and of severe pain in the stomach. She called Dr Fleming and, after he attended Mr Bourke, he returned to work and worked until the operation. Mrs Bourke said that Mr Bourke was not very well when he came out of hospital, which she supposed was just after being through an operation and “he just didn’t feel 100 per cent” in his stomach. She said he was still not 100 per cent when he returned to work and, before doing so, he complained to her about bloating, which he had never done before the operation. She was able to see the bloating and he complained about severe pain in his stomach. There has never been a period since then when he has not complained about bloating or cramping. If Mr Bourke was suffering to this extent it is incredible that he did not tell Dr MacNeil.

Mrs Bourke denied that her evidence was coloured over the passage of time by the legal proceedings.

She said Mr Bourke complained of a burning in the throat every now and again prior to October 1984, but not about abdominal soreness. He did not complain in the months leading up to the end of 1984 of feeling bloated or nauseated or having trouble with bowel control.

She said, Black Appeal Book p.73, that he did some work after the operation “for a very short time” being “only a few months”, and that he cut back on his personal involvement in about July 1985 and thereafter supervised the workers.

At Black Appeal Book p.74, she said that she would not desist from or avoid sending or taking Mr Bourke to a doctor if she thought he was sick and it was necessary and she would make sure he attended. That posed the question as to why she did not do so immediately after the operation, if he was complaining to the extent to which she referred. She said that in 1985 she recommended that he seek medical attention, but that he did not attend a doctor “when the symptoms developed” “for a while” and that he “never went back until towards the end of the year”. She denied that he did not develop any symptoms to her knowledge until late 1985.

She agreed he did not take any medication for his symptoms throughout 1985, attributing this to the fact that he did not go to the doctor. The sheer improbability of this evidence demanded it be given careful attention. The improbability is that he was not seeking any help although suffering to the extent he alleged.

She said she was at him all the time, during 1985, to go back to the doctor, but that he did not do so, notwithstanding her earlier evidence that she would make sure he did so if she thought he was sick, and he only went to a doctor when he was “really sick”. In my view, for the reasons I have given, her evidence was totally improbable because had Mr Bourke been as sick as she asserted I have no doubt that she would have insisted on his returning to Dr Fleming.

At Black Appeal Book p.65, in describing the fact that Mr Bourke worked until the operation, Mrs Bourke said that he “never really complains about being sick at all”.

Mr Murphy gave evidence that he met Mr Bourke about thirty years previously and worked with him for about two years in approximately 1967. It appears that Mr Murphy did not see Mr Bourke again until his return to Wagga Wagga in December 1975, when he saw him on a social basis about once a fortnight until December 1984. He did not work with him during that period nor see him on a work site. He said that prior to the operation in December 1984 Mr Bourke complained once or twice about “his stomach, burning in the stomach” and said that after a few beers “he got burning, his stomach hurt”. He said Mr Bourke did not complain to him about bloating prior to the operation and, after the operation, he visited him at his home and observed he was sick. He said Mr Bourke complained to him about bloating in the stomach and being very sore. These complaints make it the more difficult to accept that Mr Bourke did not see a doctor until November 1985. Since 1984 Mr Murphy has seen Mr Bourke on a social basis about once a month and he said he observed bloating. He was asked how long after the operation he did so and he said that it was hard to say but it was “probably a month, two months”. This evidence was vague, no doubt because of the effluxion of a considerable period.

Mr Murphy said that Mr Bourke complained to him about his stomach and he observed that Mr Bourke was bloated on one particular occasion.

In cross-examination Mr Murphy said the operation could have been in 1983, 1984 or as late as 1985. He said that he had not had to think about the events until about a month prior to 25 September 1997. The passage of time obviously clouded his recall and once it was clear that he could not fix the year of the operation any relevant force from his evidence about complaints was removed. On one view it may have strengthened Dr MacNeil’s position by showing that the complaints preceded the operation.

At Black Appeal Book p.219, Mr Murphy said that Mr Bourke complained of burning in his stomach after a few beers “from time to time”. He could not recall when the complaints started nor whether it was as early as 1980 or 1982 or 1984 or 1986. I have referred to the difficulties this caused. He could not recall how long before the operation the complaints started and he was not sure whether it was a matter of months or years. This was a point Dr MacNeil wished to make to defeat the suggestion of post-fundoplication syndrome. He said the complaints were “any time we had a barbecue or anything like that he had a few beers so I suppose, frequently”. However, he did not deny there were complaints before the operation.

Mr Murphy was unable to recall by reference to months how long after the operation Mr Bourke told him that he was having problems, although he said “that it wasn’t very long after”, and:- “Q. Are you able to say how long after the operation he started complaining to you of problems of work? A. It would be no more than three months, anyway.” This evidence was inconsistent with that of Mr Bourke and his wife and with the case Mr Bourke was advancing. It was, however, consistent with the view for which Dr MacNeil contended.

A reading of the evidence would not suggest that any great reliance could be placed on Mr Murphy’s recollection of times with the consequences to which I have referred. However, his Honour used it, in part, in finding that Mr Bourke suffered “serious and incapacitating bloating from the immediate post-operative period onwards”. In my respectful opinion, it did not establish this.

Mr Milward commenced working for Mr Bourke in about mid-1984, and he recalled his having an operation towards the end of that year and visiting him in hospital. He said Mr Bourke was a hard worker who complained about getting “an acidy feeling here” indicating his chest, although that did not stop him working.

He said that when Mr Bourke returned after the operation “he was not his usual self”, which he described by saying that he would stop and start and stop and start, contrary to the way he had worked previously. Subsequently Mr Bourke said, from time to time, that he was “too crook to work”. Mr Milward said that he observed that Mr Bourke was bloated. Mr Milward said that to his observations as the months went on through 1985 Mr Bourke seemed to get worse, which continued. This, to a not insignificant extent, was consistent with the view that the complaints came on later, once again showing an inconsistency with Mr Bourke’s case.

In re-examination Mr Milward said that he had tried to give evidence of the truth and what he could remember and:- “It’s hard to remember back that long and the dates, and what type of things. It is a long time ago”: Black Appeal Book p.305.

Mr Burgess commenced working with Mr Bourke around late 1983 and, prior to the operation, he said that Mr Bourke was a good worker, concreter and renderer and sometimes he got indigestion, which did not stop him working. He remembered the operation was in early December 1984. After the operation and when Mr Bourke returned to work, Mr Burgess noticed that he seemed to get tired, that “his belly was bloated up like wind or something was in there”, which he had not noticed before the operation. He said Mr Bourke was unable to work as he had before and he saw the bloating very often.

Although Mr Burgess could not remember that Mr Bourke’s business was not operating for several months in the first half of 1983, he denied that it was possible that his memory about things that took place in 1983, 1984 and 1985 was not clear because of the passage of time. Mr Burgess also said that throughout the first few months of 1985, to his observation, Mr Bourke’s problems got worse and worse.

It was this evidence, as I understand it, coupled with that of Mr Bourke, which his Honour preferred to the contemporaneous notes of Drs MacNeil, Fleming and Childs, although his Honour did not place in the balance the histories given to other doctors and in the claim forms for disability insurance and Social Security.

It seems to me that the evidence of Mrs Bourke and Messrs Murphy, Milward and Burgess creates substantial problems for Mr Bourke’s case, in so far as their evidence was that from shortly after the operation Mr Bourke was not merely inconvenienced, but was very unwell. There is the difficulty in accepting that he dismissed his symptoms because he thought they were part of the normal post-operative sensations for the reasons to which I have referred. In so far as his Honour said he believed that they “started to become a problem in about June of 1985” that is inconsistent with the lay evidence and Mr Bourke’s evidence. On certain of their evidence the symptoms had become a problem soon after the operation. On other parts of it the symptoms may have arisen before or some months after the operation. Their evidence leaves completely unexplained why it was that Mr Bourke did not seek further medical treatment of any type until November 1985. It seems to me that in so far as his Honour’s finding about the lay evidence depended to any substantial degree on his acceptance of the credibility of the witnesses, his Honour acted on evidence which, at the least, was “glaringly improbable”: Devries v Australian National Railways Commission (1993) 177 CLR 472 at p.479.

In my opinion the evidence can be characterised in that way because it is quite improbable that a person suffering to the degree that Mr Bourke was asserted to be suffering after an operation and in circumstances where he was fully aware of the source from which he could obtain medical treatment, failed to do so. Further, the evidence is at odds with evidence which, in my opinion, was “incontrovertibly established”, viz the histories given by Mr Bourke to the various doctors. I have pointed out that not only was there no effective challenge made to those histories, but also that they were not merely histories of non-complaint, but histories in which Mr Bourke allegedly stated, in a positive fashion, that he was very much better. In addition to the histories there was his evidence of the claim made on his disability insurance, which is totally inconsistent with the evidence on which his Honour relied and to which his Honour appears to have paid no regard, save for noting that a claim was made, and the very strange history given to Dr Sharrock. However, one may, at the least, divine from that history that Mr Bourke was placing any period of illness well beyond the period shortly after the operation. In the light of all that evidence, it seems to me that his Honour’s reliance, for this is what it must have been, upon the credibility of Mr Bourke and the lay witnesses amounted not only to acting on evidence inconsistent with facts incontrovertibly established, but palpably misusing his advantage because of the failure to weigh the evidence with all the other evidence and the probabilities. Even on his finding there was a period from June 1985 when the symptoms “started to become a problem” until November 1985, a period of some four to five months, before Mr Bourke sought treatment. Conclusions

In my opinion, Mr Bourke has failed to establish that he was suffering from post-fundoplication syndrome. I have reached this conclusion for the following reasons. First, I am satisfied that he was suffering from the same symptoms before the operation as after it. I have set out the histories in detail and the absence of any reason for not accepting that they record accurately what he told the doctors. There is no finding, nor evidence on which such a finding could be made, that in those circumstances the same symptoms are referable to post-fundoplication syndrome.

Secondly, in so far as his Honour accepted Mr Bourke’s evidence he failed to balance it against the histories he gave the doctors. If his Honour was satisfied that Mr Bourke was truthful, he must have been equally satisfied that he was giving the doctors correct histories. Therefore, on his own case, he supplied evidence of the same symptoms pre- and post-operatively, of feeling well after the operation until about June 1985 and of not suffering any problems until about then. The significance of this is two-fold:- (a) the medical evidence was consistent that the condition of post-fundoplication syndrome comes on almost immediately after the operation; and (b) this evidence was totally inconsistent with his evidence and that of his wife and friends that he was suffering severely from soon after the operation.

Thirdly, there is the inherent improbability that if he was suffering to the extent and in the manner he claimed from shortly after the operation he would not have sought medical advice until November 1985 and told the doctors he consulted that he was well until about June 1985.

Fourthly, Mr Bourke suffered a gastric motility disorder, which was present both before and after the operation. That explained his symptoms consistently with their pre-operation and post-operation manifestations. Dr Bambach operated to relieve that condition, which shows that it was not a minor matter. There was evidence that a fundoplication could impact on an existing gastric motility problem, but Mr Bourke did not seek to make a case at trial that Dr MacNeil was negligent in carrying out the fundoplication without having regard to the gastric motility condition and, accordingly, the interaction of the two was never considered at an evidentiary level to determine whether that could constitute a head of negligence.

Fifthly, Dr Blaxland considered that the symptoms post-operatively were the result of a truncal vagotomy. That was clearly wrong, but he went further and said that they were not consistent with post-fundoplication syndrome.

Sixthly, all the medical evidence, including that of Professor Piper to which his Honour made much reference, pointed to there being very real difficulty in carrying out an accurate diagnosis of the post-operative condition.

The conclusions to which I have come satisfy me that his Honour was in error in concluding that there was a causal connection between the operation and the post-operative condition. In coming to my conclusion I am aware that, at least to a certain extent, I am rejecting his Honour’s findings as to the credibility of Mr Bourke and the lay witnesses called on his behalf. However, so far as Mr Bourke is concerned, it seems to me that the admissions he made on a number of occasions and to a number of people as to his pre-operative and post-operative condition, together with the probabilities and the other matters to which I have referred are so powerful as to over-ride the advantage the learned trial Judge had of observing Mr Bourke, particularly in circumstances where his Honour made no finding that the matters recorded by the doctors to whom he referred were incorrectly recorded and no reference to the histories given to the Royal North Shore Hospital and Professor de Carle, and in support of the insurance and invalid pension claims.

So far as Mr Bourke’s wife and the other lay witnesses are concerned their evidence cannot be summarised by simply saying that it was “to the effect that the plaintiff suffered serious and incapacitating bloating from the immediate post-operative period onwards”. I have dealt with it in some little detail and it does not support that finding. Rather, as I have said, in many respects it is consistent with the view of the evidence for which Mr Sullivan contended. In all these circumstances it seems to me that it is proper for this Court to give effect to its own conclusions as to the evidence: Voulis v Kozary & Anor (1975) 180 CLR 177 and State Rail Authority of New South Wales v Earthline Constructions Pty Limited (In Liquidation) (1999) 73 ALJR 306. Other Issues Raised

In view of the conclusions to which I have come I find it unnecessary to deal with a number of other issues raised, but I shall note them. On behalf of Dr MacNeil a submission was made that there was no causal connection between the failure to warn and the decision to have the operation. It was further submitted on his behalf that his Honour was in error in disallowing the question to Mr Bourke as to how he would have reacted had he been told that he was suffering from Barrett’s oesophagus. Mr Sullivan also submitted that the method of computation of damages was wrong.

Mr Toomey submitted, as I have noted, that the effect of the decision in Chappel v Hart is that once it is found that the doctor has been negligent in failing to warn there is no room for the operation of the principle of the loss of chance, at least in the way in which his Honour applied it in the present case. Accordingly, Mr Toomey submitted, his Honour was in error in making any deduction. I am not certain that in Chappel v Hart the High Court was using the words “loss of chance” in that way, but it is unnecessary for me to further consider that point. This submission by Mr Toomey gave rise to a submission by Mr Sullivan that as his Honour found that there was a sixty per cent chance that Mr Bourke would have to undergo the operation in any event, and as the evidence was that he was one of the small number of people susceptible to post-fundoplication syndrome, he would, in any event, have undergone the operation at some stage and suffered the same consequences. Result

I propose the following orders:- (1) The appeal by Dr MacNeil be allowed. (2) In lieu of the orders made by Murray AJ set aside the judgment in favour of Mr Bourke in the sum of $358,608 and order judgment for Dr MacNeil in the proceedings. (3) Mr Bourke’s appeal be dismissed. (4) Mr Bourke pay Dr MacNeil’s costs of the proceedings at first instance, and of the appeals and have a certificate pursuant to the Suitors Fund Act if otherwise entitled.